Photo by Justin Clemons.
Becoming one of the best trial lawyers of a generation takes a rare consistency of achievement that is exemplified by Tom Melsheimer, who started his career as a federal prosecutor and has since tried every type of complex civil and criminal matter under the sun. The Winston & Strawn partner says that one constant of his career since his early days of “boyish enthusiasm” has been a passion for trying cases that continues to come through in court.
“The most frequent comment I get is that I come across like a Baptist preacher of the distinctly southern variety,” Melsheimer says. “As a lifelong Catholic, I don’t know exactly what to make of that, but over the years it’s been more effective than ineffective in the courtroom.”
Melsheimer is a fellow of the American College of Trial Lawyers and the co-author of “On the Jury Trial: Principles and Practices For Effective Advocacy.” He joined Winston in 2017 from Fish & Richardson and manages the Dallas office.
Lawdragon: Can you tell us what types of matters are keeping you busy these days? Will you be in trial for a case or cases in the months ahead?
Tom Melsheimer: I am lucky to have a very diverse trial practice. This year I will have tried a criminal health care fraud case and a civil real estate dispute. And argued two appeals.
LD: Before we return to trial work, let’s talk a bit about your decision to join Winston & Strawn in 2017. It involved not only bringing over your big practice, but also playing a leadership role in a massive lateral move and the opening of a new office for a large firm. What was your thinking at the time about why you wanted to take on that type of challenge?
TM: I was extremely happy at Fish & Richardson and some of my best friends in the practice of law are there. The firm has a first-rate intellectual property practice and I benefited from the firm’s stellar reputation. But I was ready to do something different and have a broader platform for my practice and, importantly, for my team, some of whom have been with me for decades.
LD: Now that it’s been a few years, can you talk about how it’s going so far?
TM: It has been more successful than I could have imagined. The trial lawyer brand at Winston is second-to-none. Winston has integrated us into the fabric of the firm and the resources have been every bit as good as advertised. Most importantly, the firm’s personality is that of a true partnership filled with mutual encouragement and support.
LD: What challenges do you see remaining for the office? Or are there certain strategic initiatives you can share?
TM: These days, the most important challenge for any law firm like ours is the acquisition and retention of talent. Finding the best young lawyers is the key to our future success. There is a lot of competition for the kind of people we are seeking. Relatedly, we have to maintain a diverse workforce. Diversity of viewpoints, perspectives and backgrounds is not just a slogan, it’s a key to substantive success going forward for any law firm that aspires to be the best in the country.
LD: When did you start to realize you did not want to focus on any one area or industry but really try cases in a vast range of areas? Was there an early experience through which you became hooked on trial work?
TM: When I was in college, I wanted to be an English professor. The job prospects weren’t very appealing in 1983 and I ended up at the University of Texas School of Law. I became hooked on trial work during my time at the United States Attorney’s Office. I was in the middle of what was then one of the biggest economic collapses in Texas history and the fraud cases that came out of it were some of the most complex and interesting cases imaginable.
LD: How about an early mentor from the trial ranks that you can identify?
TM: Richard Stephens was the First Assistant United States Attorney while I was in the office. To me, he was like Sheriff Andy Taylor from the old Andy Griffith Show. As a lawyer and boss, he was kind, generous, and gave you the impression that his greatest goal as a manager was for you to be a success. That’s a rare quality. I’ve tried in my own small way to emulate his approach. And unlike Andy, I’ve never had to manage Barney Fife.
LD: You have significant experience representing high-profile individuals, and also defending people or entities that might be unpopular or face negative facts or allegations. Have you changed the way you deal with the media or publicity situations affecting your clients outside of the courtroom?
TM: When I was a prosecutor, I ended up on the team of several very high-profile cases. As a result, I developed relationships with reporters and learned how to speak to the media effectively. Later, I started a litigation boutique in Dallas. In those days, I looked for opportunities to garner media attention for the firm, either by publicizing our cases or offering commentary on legal issues of public interest. All this experience educated me about how to deal with the media in my own cases. There are two keys to doing this successfully. One is building relationships and trust with reporters. If you don’t have that, you can’t be an effective advocate for your client. Two is always being either totally honest or completely silent. If you can’t speak the truth to the media, you shouldn’t speak at all.
LD: In the courtroom, what strategies do you employ to help guarantee individualized justice? We’re thinking here of the acquittal of your client, Dr. Nick Nicholson, in the Forest Park Medical Center case involving allegations of illegal kickbacks. How were you able to achieve the only acquittal among the nine defendants?
TM: The key is to start with good facts. Lawyers without substantial trial experience (or self-awareness) tend to overstate their own importance to any result without realizing that it’s hard to win if you don’t begin with favorable evidence. With Dr. Nick Nicholson, we started with a core of proof that demonstrated his innocence. We tried hard to get the government to see it our way before the trial but, as is typical, the government would rather lose in court than admit a mistake. At the trial itself, we maintained “message discipline.” We didn’t chase rabbits, we didn’t raise issues that didn’t directly relate to our client, and we focused the jury’s attention on our evidence and, significantly, the absence of evidence implicating our client. And apparently, it worked, as Dr. Nicholson was the only defendant acquitted in that case.
LD: Looking back over your career, is there a case or client that stands out as particularly memorable for one reason or another – either because of the challenges, the result, or unusual circumstances?
TM: Representing Mark Cuban in the alleged insider trading case brought against him by the SEC is one case that stands out for me. The reputational stakes for Mr. Cuban were very high and the media coverage of that case was unlike anything I have ever seen, from the financial press to ESPN. I’ll never forget that during the middle of the trial, the series finale of “Breaking Bad” aired. I wanted to make sure our case had a better ending. It did.
LD: What did your induction into the American College of Trial Lawyers mean to you?
TM: It is always gratifying to be recognized by some of the best trial lawyers in the country. But the real value of it to me was the opportunity it gave me to reflect on all the diverse cases I’ve tried over the years, for a remarkable array of clients, including representing the Department of Justice, entrepreneurs, corporate America, patent owners and whistleblowers.
LD: What was your motivation for wanting to put lessons from your vast experience into a book like “On the Jury Trial” – what did you hope it could add to the existing literature?
TM: Judge Craig Smith, with whom I wrote the book, is one of my closest friends. We had spent so much time talking about trying cases, whether from the perspective of a judge or a trial lawyer, that it seemed just natural to write down some of it and provide it to others as a guide. And I’m extremely proud that our proceeds from the book go to the UNT Dallas College of Law.
LD: Were there parts of writing the book that surprised you or made you rethink certain lessons or concepts just by putting them on paper?
TM: When we wrote the chapter on closing arguments, I was reminded on how relatively unimportant it is compared to almost every other part of the trial. I am not saying it’s not important at all, but trying cases over 30 years has convinced me that opening statement and effective cross examination are much more important to a successful trial result.
LD: Are there certain core lessons you discuss in the book that you seem to go back to time and again with young trial lawyers?
TM: There are many useful elements of the book that allow young lawyers, and older ones, to enhance their trial skills. But the most important lesson, to me, is the importance of civility. Lawyers can have passion and conviction about their clients and their cases without demonizing the other side’s lawyers.
LD: When you’re not dealing with the law or work, what do find yourself doing?
TM: With our kids out of high school and in various stages of additional schooling or work, Miki, my wife of 36 years, and I have a lot more time to spend together. We aren’t tired of doing so. Far from it. The freedom to travel without taking into account anyone else’s schedule has been a revelation. The only time I am not ideal company is during college football season, particularly when Notre Dame is playing.
About the author: John Ryan (firstname.lastname@example.org) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.