Tom Melsheimer was in trial last fall when his boss sent him a text message floating the idea of him co-chairing Winston & Strawn’s litigation department.
Melsheimer was once again in trial when the firm announced his new role in late February. The nationally renowned trial lawyer calculated that during a recent six-month period, he’d been in trial for 130 of 180 days.
But Melsheimer has no plans to scale back his practice when he takes over as co-chair of the international firm’s litigation department in June. He’s looking at being in five more trials this year.
In fact, Melsheimer believes it’s a strength to have a busy litigator in the leadership role. He says one of his predecessors, Steve D’Amore, handpicked him because the firm wishes to have one of its leading trial lawyers managing the group. D’Amore is vacating the role to assume the job of firm chair.
“Not that I’ve got a handbook on the seven habits of highly effective managers — I’m not claiming that,” Melsheimer said in an interview with The Texas Lawbook, “But I do think that having someone that is actively involved in trying cases — if you could pull it off, having that person also helping manage the litigation group — there’s going to be a realism brought to that, that you wouldn’t have if I was removed or had cut back my practice.”
Melsheimer’s high profile client list includes Dallas Mavericks minority owner Mark Cuban, who in 2013 beat an insider trading case brought by the U.S. Securities and Exchange Commission, and Dr. Nick Nicholson, a world-renowned bariatric surgeon who in 2019 was the sole acquittal of nine co-defendants who faced trials in the infamous Forest Park Medical Center kickback case.
At 63, he’s tried criminal, civil, business and patent cases. A reason he decided to accept the job is because he believes he has more to give than he did 20 years ago.
“There aren’t that many people my age that have tried the breadth of cases that I’ve tried,” Melsheimer said.
He said he doesn’t mean to brag; but his career has indeed been varied. After graduating from the University of Texas School of Law, Melsheimer worked for Akin Gump Strauss Hauer & Feld. He then diversified his resume going to work as a prosecutor for the U.S. attorney’s office in Dallas. From there, he co-founded Lynn Stodghill Melsheimer before going to Fish & Richardson and then to Winston in 2017. He’s both defended Fortune 500 companies and sued them.
His philosophy, he said, has always been to take on the hardest problems for the people that need his help.
Melsheimer will remain managing partner of the Dallas office, a role he’s served in since joining the firm. He will co-chair the litigation department with Linda Coberly, one of the firm’s top appellate lawyers who is in Chicago.
The litigation department is the largest group of lawyers Melsheimer will have managed, with about 450 litigators across more than a dozen offices, he said.
Melsheimer shared his philosophy for leadership in the following interview with The Lawbook, as well as his vision for the firm and his practice. This interview has been edited for length and clarity.
How is the transition going right now?
Well it’s interesting. So, I have never managed a group of lawyers this large. I’ve always been the managing partner at the offices I’ve been at, but the actual practice group management is something that has been done by others. So this is new to me in terms of understanding the productivity of the group, understanding whether we’re lacking in some expertise, whether we need to cut back on expertise, whether we need to grow a particular area, whether we already have enough people in that area. Understanding that and then the whole professional development angle of it, of training, evaluating people for partnership, but then also once they’re partners kind of understanding are they productive? Are they good partners, so to speak? All of that stuff falls within the job description.
I like to think of it as kind of a financial management perspective, as well as a human resource management perspective. Obviously we’re not a charitable trust — we’re in the business of making money for our partners. But we’re also in the business of having a place that people enjoy working, where they can grow and develop and have exciting and fulfilling careers.
Those are the two aspects of the job. I’m probably better at the last part of it. I’m not a numbers guy. I don’t like Excel spreadsheets, generally. But we have a lot of support for that within the firm. We have a good group that collects data on billing and realization and collections, and the whole finance group is well familiar with that, and so I doubt that I’ll be immersing myself in that aspect of it. But that is, again, that is part of it. We have expertise in areas of the law because we think that there is a need, and if we need to serve that need in a way that’s financially sensible, we can’t have too few lawyers devoted to those practices. We can’t have too many.
You kind of touched on this, but what is your philosophy on leadership and specifically this litigation group? Do you want to expand on that?
I think that I’ve always tried to focus on the people and their satisfaction. I don’t want to focus too much on happiness — that’s a little subjective. But you want people to be satisfied with what they’re doing, how they’re doing and who they’re working with. So I try to approach this with a fair degree of humility because I don’t know all 450 litigators at the firm. I just don’t. … I don’t want to take on this role and think, “Okay, here’s 10 things I want to change immediately” without being pretty sensitive about interrogating what we’re doing now and how we can do it better.
I mean, everybody in a law firm, but especially trial lawyers, they tend to have strong opinions about things. Part of my job in the beginning is going to be to listen, kind of go on a listening tour, and understand what people think we’re doing well, what people think we are doing that could be improved. Winston & Strawn is 170-plus years old and is sort of built as a trial firm. Its primary, early days were as trial lawyers. [The firm continues to] have a great brand as one of the oldest trial firms in the United States. We obviously have a very strong corporate transaction brand, too. That’s up to two other people to deal with. So I’m trying to make sure that we respect what we’ve done in the past and try to build that brand. It’s a little bit like you’ve gotten control of a Mercedes dealership. Everybody knows you have great cars. But you want to make sure that you’re doing everything right to keep up that sterling reputation.
Is there anything you know right now that you want to change?
I don’t know that there’s anything specific that I would say I want to change. I would say that I think we’ve had a lot of growth over the last seven years since I’ve been here. So I do want to look at how we’ve been growing. Is it in the right areas? Is it with the right people?
Hiring is such an interesting thing for law firms now because we’ve been pushed into a situation where the hiring of a first-year law student, except in very rare instances, that person ends up getting a permanent offer to come work for the law firm, even though you’re hiring that person with very little information on them. So you’re making a decision that may lead to that person coming to work with you in three or four years. So, can we do that better? Should we be hiring more out of judicial clerkships where you hire people that have gone to work for a judge? And this is, again, just for litigators, where you’re hiring people coming out of where they were they’ve had to perform at a very high level for a typically very exacting boss. Should we be devoting more of our resources to that sort of hiring?
We’re always going to have a summer program. We’re always going to introduce people to the firm through the summers. But is there a way to also do hiring where we have a little bit more of a runway with people than making that decision, basically, in the first semester of their first year in law school. Everybody does it that way. It’s not just a Winston thing. So I’m not saying I’ve got some new way of doing it. [The industry practice] goes back and forth over the years. For many years, big law firms did not hire first-year law students for this very reason. Because they want to have more of a track record academically. Well, what would happen is a few firms would hire, and they’d end up hiring some really good people. And then when those people went and interviewed for their second year, they would tend to gravitate back to their original firm because that’s all that they knew. And so another firm might hire them. And they spent part of the summer with that new firm and then part of the summer with their old firm, but that original firm had a leg up in terms of that person’s loyalty, that person’s desire to come to work. So more and more firms started hiring 1Ls to get that advantage, and now lots of firms are hiring 1Ls.
And so you have a situation where, again, we’re always going to have a summer program because that’s the best way to get to know the person and for them to get to know the firm. But I think we’ve also had great success in this office hiring out of judicial clerkships where people have had to perform, you know, as a real lawyer for a year in often a very demanding environment. So we were going to end up doing both, I’m sure. But the question is, “Do we do we turn the dial more towards judicial hiring and less towards summer hiring?” Again, we’re always going to be hiring out of the summer because it’s a proven method, but it’s become more challenging because the market has moved to essentially making almost a permanent hiring decision based on the first one semester of someone’s career.
Now you might say, “Why can’t you just not make job offers to those people?” Well, that ends up being real problematic because every firm tends to make 90 to 99 percent of the people offers. So if you’re the one firm that doesn’t, then guess what happens next year? Nobody wants to come work for you. Because they see it as too risky. So there’s kind of a herd mentality, if you will, for law firms to all do the same thing. And I’ve been here seven years, I don’t know that we’ve ever not made a permanent offer to a summer associate. It may have happened once. But it’s very infrequent because, again, you get that reputation of being too demanding or too exacting. And given that all the firms are paying the same amount of money, you know, young lawyers think, “Well, I’d rather go somewhere where I have a better chance of getting a job”.
Are you somebody who breaks the mold very often?
One thing we’ve done here that’s broken the mold is — so the firm and very few firms have any kind of requirement that you work for a federal judge before you come to work in the litigation group. Here in Dallas, we don’t have that as an explicit requirement. But we very, very much encourage our summer associates to seek out federal judicial clerkships because it’s such great training. So I think we have something like 80 percent or more of our Dallas lawyers that we’ve hired in the last seven years have come out of judicial clerkships. They’ve worked here in the summer. And then when they graduate, they go to work for a judge for either one year or two years, and then they come work for us or sometimes they come work for us. And then after a year working here they go work for a judge, and then come back. So I think that is breaking the mold somewhat in Dallas.
Are there any other immediate plans you have for your tenure?
I’d like to see how we could make our partners more productive. That’s a question of support. It’s a question of do we have enough people in the right places? Do we have enough people doing the right things? And I think it’s professional development. We might have 70 to 100 lawyers starting in the fall, and roughly half of those will be in litigation. There’s a learning curve that takes place where those people literally just show up for work and they’ve got their desk and what are they supposed to do, right? We have to get better, I think, at making people productive as soon as possible when they start their career, because that ends up doing two things. One, it leads to their overall careers being more successful. We found one of the key elements to future success in a law firm is starting well. That first 90 to 180 days is very critical, because it’s critical to your job satisfaction as a lawyer and it is critical to how people perceive you around the firm. So if you’re seen as someone that works hard, that is smart, that doesn’t get discouraged, that goes the extra mile, that’s creative – if you give that impression in those first six months, that’s probably going to be a lasting impression. And if you don’t give that impression, it’s going to be hard to change it. That’s not some groundbreaking insight. I think every firm is trying to do that. I think we have to find ways to do that better than we’re doing, because by the time someone comes to work here as a litigator we’ve invested a tremendous amount of time and money in their careers. We’ve had them as a summer associate. We’ve recruited them, we’ve stayed in touch with them. We’ve done all the things that good law firms do. We have to make sure that these people get a quick start and a successful start, because that is the single biggest indicator of long-term success.
You’re going to be juggling co-chair of the litigation group and managing partner of this office?
That is the current plan until someone tells me that that’s a crazy idea.
Do you think it’s a crazy idea?
I think it might be. I’m open-minded to the craziness of it, but if I can’t do it there are a lot of people here that I think would be really well-equipped to take over that role. I already share that with Brian Goolsby, who’s a transactional lawyer, so it’s a little bit easier to pull off because I’m already sharing it. But a bigger challenge for me is doing all this important work for my partners at the firm and our colleagues, and also maintaining a full-time law practice. So there’s no question that for me, my cases and clients come first eight days a week. It’s not like when they asked me to do this, it’s not like they didn’t know that I had a day job.
[Steve D’Amore] literally told me, “I want you to do this role because I think you and I look at things differently sometimes. And I don’t want somebody to just corroborate what I’m saying. I know that you have ideas and visions about things that may be different from someone that’s been here for 30 years”’ That’s one point. The other point is he wanted to have the co chairs of litigation be some of the highest profile lawyers in the firm. So Linda Coberly is the face of our appellate group. And she is one of the leading appellate and critical motions lawyers in the United States. The firm sees me as one of the leading trial lawyers at the firm and the face of the firm’s national litigation practice. Our respective busyness in our fields was part of the reason why Steve wanted us to do this job because he wanted to have the litigation department shared by two people that were also the face of their respective practices, if that makes sense.
Steve really wanted to have a diverse group. It ends up being a group that is Winston lifers and then people that are new to Winston, and I think that’s part of what we’re trying to capture.
Not that I’ve got a handbook on the seven habits of highly effective managers. I’m not claiming that, but I do think that having someone that is actively involved in trying cases, if you could pull it off, having that person also helping manage the litigation group – There’s going to be a realism brought to that, that you wouldn’t have if I was removed or had cut back my practice.
What does this mean, then, for the number of cases you’re able to try?
It’s going to mean that Linda and I are going to have to really share the workload, and there’s going to be times, I think, when Linda’s doing the bulk of the effort, and there’s going to be times when I’m doing the bulk of the effort. There’s just no way to change that.
I wasn’t selected for my managerial expertise specifically. The firm wants to have one of the leading trial lawyers in the firm help manage the litigation group. OK. That makes a lot of sense to me. But that means that we’re going to have to work to share the load.
We get a lot of support. With some administrative help, with Linda and I sharing this, I’m confident that it’s going to be a success. My two predecessors who were in this job were Steve D’Amore, who’s now the chair of the firm, and George Lombardi. And both George and Steve were and are two of the leading trial lawyers in the firm, and they were able to manage it without cutting back at all on their practice. It probably means I’m going to have to work more in total. But at the end of the day, I’m very flattered to be asked to do this because I don’t have a history of managing people of this size. But I have grown multiple law firms. I started the Fish & Richardson office from zero. We got up to 70 lawyers. We started this office from zero. We’re now at a hundred lawyers. So I’m glad someone has recognized that I have a knack for building teams, for creating good morale.
I often think of myself as kind of “chief morale officer” around the firm and around this office in particular. I think I’m going to bring that, hopefully, to this job. I want people to be excited about what they’re doing. I want them to feel satisfied with their careers in the firm. And if somebody’s not feeling that way, I want to do what I can to fix it. Fundamentally, most things in law firms are fixed by the firm being successful. Firms that are profitable and successful typically tend to have happy, satisfied professionals. If a firm does not have the resources in an area or if the firm is struggling, you often find the lawyers there are not happy. So to me, focusing on hiring and then making them as productive as they can possibly be – the end product of that is going to be a more successful law firm and that makes everybody happy.
We’ve had a chairman for 16 years — Tom Fitzgerald — and he is responsible for this office being started. He’s responsible for numerous other growths in the firm. The New York office really was transformed under Tom Fitzgerald’s leadership, so he did a lot of things well. How do we improve what he did while still respecting that legacy of success?
You don’t need to throw over the apple cart. You need to do nuanced changes that make things better to an already successful enterprise. I think that’s much harder, frankly, than coming into a negative situation.
The firm’s flourishing. We want to do better to serve our clients more and keep up with our competitors. And again, it’s going to be nuanced. We’re going to have to do it with a lot of humility, study, listening, because the firm is thriving. But everybody wants to do better. That’s the push. Everybody wants to push things for more success, more profitability, faster growth, all those things. That’s much more challenging than trying to fix something that’s broken.
What are some of the hallmarks of the leadership of your predecessors that you absolutely want to keep?
I think that George and Steve were extremely steady, with great equanimity. Steve D’Amore is a guy that if there’s a fire in the building, he’s quietly calling 911. He’s not panicking. He’s not running around like a chicken with his head cut off. George Lombardi also has sort of a universal human appeal about him. He’s just extremely likable and appealing, soft spoken. I’ve never heard either of these guys raise their voices. Now, no one has ever said that about me, that they’ve never heard me raise my voice. So I’ve got to figure out how I’m going to adjust to that. But I do that that quiet confidence inspired a lot of our success during COVID. In March of 2020 — Nobody knew what was going on. Nobody knew if the world was going to end in a month or if this was going to be over in six weeks or what was going to happen. These guys were extremely careful, cautious, but they had a reassuring quality about them. It wasn’t just a question of saying everything’s going to be all right. It’s the way they went about their jobs with a quiet confidence that “Hey, we’re all in the same boat. We don’t know any more than you do. But here’s the first step, we think, to making things better.” I sometimes tend to want to fix something right away, maybe look for the dramatic solution. I think that I can learn a lot from the quiet confidence.
Can you share the timeline and how this job came about? The announcement came out while you were in trial.
I was asked to do it while I was in trial in the fall. I’ve had a crazy nine months. During one period, I had figured out I’d been in trials for 130 out of 180 days. So Steve D’Amore reached out to me by text in the fall of last year and said, “Call me,” and I said, “Well, I’m in trial, I won’t be able to reach you for a while.” He said, “Well let me just tell you what I’m thinking about.” I remember I texted him back and I said, “Are you sure you got the right person here? I mean, you know, it’s Melsheimer, right?” Because I’m on the executive committee at the firm, but I hadn’t put in for this.
He told me about it and that’s where he said this thing that really stuck with me, which is, “We don’t always agree on everything, and that’s why I want you in this job.” And I thought, “Wow, that’s a really mature, intelligent way of being a leader.” Because a lot of times leaders just want to be surrounded by yes people.
I think Steve’s vision is that having multiple perspectives is the path to success.
I thought about it for a while and I talked to some people about it here at the firm. I talked to my family about it. I thought it’d be fun to have this kind of challenge.
I’ve been at it for a long time. I’ve managed multiple firms here in Dallas. I’ve grown things from nothing to something. And I do feel like I have some insights. I feel like I have something to contribute that I wouldn’t have been able to contribute 20 years ago.
[Steve] told me it was Linda Coberly [who would co-chair] as well. She’s one of the first people I met when I came to Winston. And I loved her personally. I thought she was an excellent lawyer, she was fun to be with, she was interesting to talk to, and from what I knew about her she’d be really a pleasure to work with, and that has certainly borne itself over the ramp up to this.
What trends have you seen in your practice area and are there any interesting court opinions that you’re reading right now?
Well, of course, everyone’s reading the Clapper case. I listened to the oral argument of that because someone told me that it was really interesting. And I just now realized that I listened to it two years ago. That’s how long that thing’s been pending.
Were you surprised that it took the Fifth Circuit that long?
Very. Because normally it doesn’t take that long to resolve an appeal. Anything that’s on appeal that long is almost always going to have a result that’s not typical.
I am still amazed by the amount of litigation over Winter Storm Uri. We just got hired with another case today that involves Winter Storm Uri. It’s amazing to me that was three years ago, and it is still producing litigation.
The other thing that’s kind of surprising to me is I got hired on my first alleged COVID fraud case, and I thought there would be more of those cases out there because I know it’s a priority. … I think there’s more to come. I think Winter Storm Uri is not done, and I think the repercussions of COVID are still being felt.
What do you make about this idea that there’s a lot more “Rambo” tactics being used by trial lawyers?
I personally have not seen that. I will tell you that I make it a point to befriend the other side where I can.
I don’t want to be enemies with my adversary. That may be one of the reasons why I’m not burned out at doing this, because I’ve generally had very good experiences with the other side. I’m a member of a number of organizations who try to cultivate civility and professionalism.
I try to teach our lawyers around here not to react negatively, not to try to one-up somebody in terms of snark. Email makes it so easy to be snarky to people. It’s kind of harder to say some of the things on the phone that you would in email. So I tell people all the time, “Pick up the phone. Don’t have this email battle.”