Charge $1,000 for an Hour of Your Time
Tom Melsheimer is sitting in his office, leaning back behind a tall desk, looking up through the glass ceiling at the ceaseless, sun-filled sky. He’s a man Tom Wolfe might have dubbed a Master of the Universe, and he has a busy day in front of him. There will be various meetings with technology experts, with media types, with at least one political candidate, and a handful of attorneys at Fish & Richardson’s Dallas office, where Melsheimer is what they call a “managing principal”—one of the bosses. Later, he will get into the Mercedes he’s borrowing (while his own SClass Mercedes is getting some work done) and drive to lunch at the Crescent Club. Then he’ll meet with a client, talk with his very astute publicist, and eventually head home to his big house in Preston Hollow. At the moment, though, he’s talking about his office.
The office of Fish & Richardson sits on the 50th floor of the Comerica Bank Tower in downtown Dallas, the last high-rise built during the boom of the 1980s. Melsheimer’s office is in the corner, where the ceiling opens up into glass, like an atrium. It looks out over the city, over the coursing business, into the horizon.
“When the building was first finished,” he explains, “this was the office the architect kept for himself.”
He’s tall and balding, with brilliant blue eyes, and he has all the trappings of a big shot: the car, the home, the beach house in Florida, the private screenings of the latest Hollywood blockbusters before they’re available to the public. Thanks to the eclectic taste of his partner Steven Stodghill, the office is filled with original Lichtenstein prints and rare superhero collectibles—and even a triceratops horn, approximately 223 million years old. To prospective clients, these surroundings scream success. To opponents, they are a message to fold as soon as possible. To young attorneys, these are reasons to work for the firm. And to reporters, it’s a nice view and a chance to see a triceratops horn.
Compared to many of his peers, however, Melsheimer lives like a monk. He doesn’t belong to a country club, for example. He doesn’t even golf. He doesn’t own a jet or a giant catamaran or throw $100,000 parties for his children. In fact, he notes that though the sunsets might look beautiful from this high up, the air conditioning bills are terrible.
Have a Rich, Famous Client Who Often Needs Legal Help
Melsheimer has a reputation as a man who can connect with jurors, a man who breeds loyalty in his clients. He has worked directly with Mark Cuban since Cuban’s days at Broadcast.com. When Ross Perot Jr. sold Cuban the Dallas Mavericks more than a decade ago, Perot maintained a 5 percent stake in the team. Three years ago, Perot filed a number of lawsuits against Cuban, accusing him of mismanaging the team. The lawsuits were still open in 2011, when the Mavericks won the NBA championship.
That’s how Melsheimer got his name on what has become one of the most talked about, most entertaining legal briefs in modern jurisprudence. As he tells the story, his voice picks up the same pace and intonation he often uses in court. He says he doesn’t remember who came up with the idea, but shortly after the Mavericks beat the Miami Heat in the NBA Finals that year, he fi led a brief related to the case. It outlined how, before Cuban’s ownership, the team had been “the worst franchise in all of professional sports” and how now the Mavericks had “become one of the league’s most successful teams.”
On page two of the brief was a photo of Dirk Nowitzki lifting the championship trophy, surrounded by his teammates, coaches, and team owner Mark Cuban. The sports blog Deadspin called the filing “The Ultimate ‘Fuck You’ Legal Brief.”
Melsheimer is proud of the filing and the attention it got but points out that there was a legal point made there, too, about good stewardship. “Nothing builds trust and loyalty over the long run like winning,” he says.
Follow the Money
His list of clients over the years has included plenty of wealthy celebrities and politicians. But over the last decade or so, he has paid particular attention to intellectual property laws. As it turns out, the U.S. District Court for the Eastern District of Texas, headquartered in Tyler, has special rules for patent infringement cases. There is what lawyers call a “rocket docket.” Patent cases get relatively fast trial dates in the Eastern District of Texas (usually months, as opposed to the years it takes in other courts), and intellectual property cases can be filed virtually anywhere the patented technology is used, which for internetrelated cases means anywhere. In 2003, there were 55 patent cases in that part of Texas. Three years later, there were more than 200. That means lots of plaintiffs who might have giant windfalls coming their way and lots of big corporations willing to spend quite a bit to legally defend their profits. Both sides need lawyers.
His firm is one of the oldest, most powerful in the country, and has represented innovators including Thomas Edison, Alexander Graham Bell, and the Wright brothers. Though Melsheimer is in his 50s and is rarely seen without a collared shirt and jacket, in recent years he has had to become an expert in things like HTML coding used for online seat selection and the history of MP3 players. And while he stillhandles plenty of patent cases, he says that cottage industry is already largely played out. That’s how fast the big money moves in law. He’s on to the next lucrative field: whistle-blower lawsuits.
Have a Background in High-Profile Cases
In addition to Cuban, Melsheimer has represented Bank of America, Texas Instruments, several airlines, and Microsoft. As one of the primary trial attorneys in the firm, he’s often the face of a case, and he’s quoted in newspapers dozens of times a year. He got a taste for that sort of thing as a young prosecutor in the trial of Danny Faulkner, the developer at the center of the biggest savings and loan scandal in Texas history. (It ended up costing U.S. taxpayers more than $1 billion.)
The case stretched on for years, from the mid-’80s to the early ’90s. There were hundreds of newspaper stories and television reports. Faulkner, whose defense at the time included a claim that he was illiterate, would eventually be convicted and sentenced to 20 years for his scams. Melsheimer loves to tell a story about a moment near the end of that trial.
The jurors were still deliberating—it was an especially complex case—and they had sent out some written inquiries. Melsheimer and his fellow lawyers gathered around the court clerk who was holding the questions.
“Standing right there next to me was Danny Faulkner,” he says, recounting the story over lunch. “He was leaning in with the rest of us, looking at the jury’s questions.”
Melsheimer was incredulous. “I turned to him and said, ‘Now, I thought you couldn’t read.’ He just smiled and walked back to his seat.”
That case also taught him how to deal with the media, he says. He learned that if he gave reporters access, if he sat down and explained his case to the people asking, he seemed to get more favorable coverage.
Toward the end of lunch, a waiter comes by the table, asking if anyone needs anything. The man stops and tilts his head at Melsheimer. They seem to recognize each other. Melsheimer explains that they attend the same church. There’s a smile, and a friendly handshake that probably looks strange to all the other rich lawyers in the room. They chat for just a moment. Long enough to be cordial, not so long as to be rude to the other people at the table.
“I’ll see you Sunday,” Melsheimer says as the man leaves the table.
He knows the people of Dallas. He knows Texans. He knows what they want to hear when they’re on a jury.
Melsheimer grew up here, cultivating his debate skills at Jesuit Dallas High School. He went to Notre Dame, then to the University of Texas at Austin for law school, where he worked on the Texas Law Review. The walls of his office are covered in memorabilia from both universities. The walls of his firm’s office include an incredible display honoring the 2006 National Championship Vince Young won at Texas. At least one partner at the firm was an undergraduate with Melsheimer at Notre Dame in the early ’80s, and another sat next to him during his second year of law school. In fact, the halls of his office are full of faces Melsheimer has known since his days as a prosecutor or from his time at Akin Gump law firm.
Lose a Giant Case
Closing arguments were valentine’s Day 2007 in San Diego. Melsheimer was representing Microsoft, a defendant in the largest patent infringement case of all time. He explains that he hates telling this story. It’s still painful. The plaintiff, France-based communications conglomerate Alcatel- Lucent, was suing over the use of patented technology related to MP3 codecs. The original complaint was seeking more than $4 billion in damages.
Melsheimer was back in Dallas a few days later—his mother was sick—when the verdict came in. The nine California jurors had sided against Microsoft, with damages totaling more than $1.5 billion.
“That’s a big hit,” he says. “Obviously, you worry you’re going to be known forever as the guy who lost the biggest patent infringement case in history.”
Amid a stream of calls from reporters and emails from lawyers, a longtime friend sent him a text message asking how he was doing. The friend was just checking in and didn’t know he had been working the case. That became apparent when, after Melsheimer said he’d seen better days, the friend replied with something to the effect of: “At least you’re not that guy in San Diego who just lost $1.5 billion.”
More than two and a half years after the original verdict, the damages findings were thrown out by the trial judge, and the trial judge’s decision was later affirmed by the appellate court, but those stories don’t make the juicy headlines.
Win Several Big Cases
He has notches on his belt. every year, The National Law Journal publishes a list of the nation’s Top Verdicts. Melsheimer had courtroom victories on those lists five times between 1998 and 2009. In the last few years alone, he worked on a team that won a $178.7 million verdict against NL Industries, one of several companies controlled by Dallas billionaire Harold Simmons; he successfully defended a group of airlines and online ticketing companies in a patent infringement lawsuit seeking $285 million; and he helped a whistle-blower and the state of Texas win a settlement against Johnson & Johnson worth $158 million. That case, involving the anti-psychotic drug Risperdal, was also the largest Medicaid fraud settlement in Texas history. (And, if you’re keeping score, Ross Perot Jr.’s suit against Cuban was dismissed not long after the filing of that nowfamous brief.)
When the Dallas Museum of Art and the president of the UT Southwestern Medical Center were accused of conspiring to defraud an elderly philanthropist—and the estate lawyer who drew up the wills was drawn into the lawsuit—that lawyer came to Melsheimer for help. In the end, Melsheimer was on the winning side of that one, too.
He has given thousands of dollars to Democrats over the years, but he doesn’t let political affiliation keep him from dealing with anyone. While pursuing the Risperdal drug case, for instance, a trial that took nearly a decade to come to fruition, Melsheimer worked closely with the very conservative state attorney general’s office, which answers to a number of politicians who don’t want to answer questions about big monetary awards going from private industry to the government.
The case was nuanced. Essentially, Melsheimer’s side claimed that Risperdal had been oversold to the state.
“It’s not that Risperdal is a bad drug,” he explained at the time. “It’s just not worth what the state of Texas ended up paying for it.”
Though the $158 million Medicaid fraud settlement was the largest in state history, Melsheimer was hoping for closer to three or four times that. Still, the settlement means there won’t be any appeals and his client, the whistle-blower who started the case, will get millions.
Be a Broker of Power
One of his other meetings today is with Taj Clayton, a rising star in the firm. When he comes in the office, Clayton is smiling, happy to shake hands with any strangers. He’s a young-looking 35, wearing a snug silver suit. Last year, Clayton ran for Congress, challenging Democrat Eddie Bernice Johnson, who was endorsed by President Obama. Melsheimer was Clayton’s campaign treasurer and started the fundraising with a personal donation.
“He’s been nothing but supportive at every step,” Clayton says.
Melsheimer compares Clayton with Obama. “I really believe in Taj,” he says.
Of course, there are also serious benefi ts to having lawyers from the firm in the U.S. Congress or in powerful lawmaking positions. It’s not just power for power’s sake. A change in the law can mean a whole new area of law—it can mean billions of dollars changing hands, and the way a community is shaped for generations.
Clayton lost in the Democratic primary to Johnson, but Melsheimer says, “This isn’t the last you’ll hear of him.”
Don’t Be an Ideologue
Melsheimer is flexible. he can go from a case where he’s representing a whistle- blower to a case where he’s defending a corporation—and then back again, without any trouble. To outsiders, it probably seems opportunistic, he knows. But it’s the smart, reasonable way to practice law. It’s the most important rule, he says. Since his days in high school debate at Jesuit, he has always been able to see both sides of any debate. Not because he lacks some moral compass, but because there are often at least two different, reasonable arguments to be made.
“There’s a lot of law in the books,” he says. “Not a lot of cases go to trial. So by the time it’s gotten that far, there are clearly somewhat valid viewpoints on both sides.”
A lot of young attorneys struggle because they get too caught up in their own arguments to see the larger context. “It costs them in the courtroom, too.” Melsheimer can distance himself. He can look at the world in context, like looking out his office windows. When there’s a suit filed, it’s not uncommon for him to get a call from both sides. So how does he pick which side he’ll take?
“Whoever calls first.”