Thirty-five years into his legal career, Tom Melsheimer still finds himself, on occasion, delving into new territory.
The seasoned trial lawyer had never tried a securities case before the U.S. Securities & Exchange Commission charged Mark Cuban with insider trading. Melsheimer led the trial team that secured a defense verdict for Cuban in 2013.
This fall, Melsheimer dove into uncharted territory again when he tried his first disability rights case, this time taking on Texas Attorney General Ken Paxton and Gov. Greg Abbott. Melsheimer and a team of lawyers at Winston & Strawn partnered with lawyers at Disability Rights Texas to represent seven disabled Texas public school students challenging Gov. Abbott’s GA-38, which bans Texas public schools from imposing mask mandates.
Roughly 2,000 pro bono hours later, the team scored a win last week when U.S. District Judge Lee Yeakel of the Western District of Texas ruled that Gov. Abbott’s mask mandate ban violates the constitutional rights of children with disabilities.
The state filed its notice of appeal the day after Judge Yeakel’s Nov. 10 order, and the Winston team is staying on to handle chapter two of the litigation.
The full Winston legal team includes partner Scott Thomas, of counsel Mike Gaddis, associates Will Fox and Alex Wolens and paralegal Danielle Sloan of the firm’s Dallas office; of counsel Brandon Duke of the firm’s Houston office; and partner Linda Coberly of the firm’s Chicago office.
Attorneys from the Texas AG’s office handling the appeal for the state include assistant attorneys general Ryan Kercher, Todd Dickerson and Taylor Gifford.
The Texas Lawbook caught up with Melsheimer to learn more about how his firm got involved in the case, how it differed from other matters and what the biggest surprises were.
The Texas Lawbook: How did this case come to you and why did you tackle it?
Tom Melsheimer: Winston has a number of relationships with non-profit entities like Disability Rights Texas. My colleague in Houston, Brandon Duke, had done some work for them in another matter and they reached out to Winston for this case.
The Lawbook: How many pro bono hours did you and the rest of the team put on this case?
Melsheimer: Given the compressed nature of the trial where we were having to draft a complaint, identify experts, conduct discovery, respond to extensive motion practice and prepare for trial all at once, we had a large team working very hard for about two months. I don’t know the exact number of hours, but I am confident it is approaching 2,000 hours when everyone is included.
The Lawbook: I understand this was the first time you’ve litigated a disability rights case. Your track records shows you are no stranger to jumping into and succeeding at trying cases involving unfamiliar territory on tight timelines. How did this experience differ from others?
Melsheimer: Every case is important to the client. The stakes in this case seemed bigger than a typical commercial case. We knew that the health of children with disabilities all over the state was at risk from the mask mandate ban. We didn’t want to let those kids down.
The Lawbook: Have you received any pushback from the public or lawyers?
Melsheimer: Very little. Once people understood that our position was not that we were seeking to impose mask mandates but instead were simply wanting to give school districts the freedom to make their own decisions about masks, it becomes a case about which it ought to be hard to disagree.
The Lawbook: Why do you think this issue has gotten so political?
Melsheimer: I don’t know, and I think we will fill the history books with analysis of why it did. Part of the challenge is there is almost no one alive today who has any experience in the United States with the kind of pandemic we’ve been experiencing. So we are all finding our way in some respects.
The Lawbook: What is the most surprising thing you learned from this case?
Melsheimer: That, in spite of all the internet chatter, there isn’t much real scientific or medical dispute about Covid mitigation strategies. The state in this case offered no evidence to contradict any of the science we presented. None. The debate is really a political one.
And that is what we tried to stay away from in this case. We weren’t making a policy argument about masks or no masks. We were making traditional legal arguments about the obligation of the schools to accommodate reasonably the needs of children with disabilities. And that is a discussion that is not new or controversial. Ramps in school hallways have been part of our lives for decades. Covid mitigation strategies may be less familiar than ramps, but they reflect the same principle.
The Lawbook: What do you think will happen on appeal?
Melsheimer: We think the court’s ruling is consistent with many years of Supreme Court and Fifth Circuit case law. Many of the critical facts were the subject of stipulation or otherwise not challenged. Consequently, we are hopeful that any reviewing court will affirm the result.