In this episode of Trial Lawyer Talk, Scott speaks with Wyoming attorney Mel Orchard. Mr. Orchard tells Scott about learning to grow from losses.
Transcript for Episode 33, with Mel Orchard
Welcome to Trial Lawyer Talk. I’m Scott Glovsky, and I’m your host for this podcast where we speak with some of the best trial lawyers in the United States. This is a story telling podcast, so we have great lawyers tell great stories from cases that had profound impact on them. So let’s get started.
I’m very pleased and honored to be sitting with Mel. Mel Orchard is a phenomenal lawyer who practices in Wyoming. He’s the managing partner of the Spence Law Firm, and one of the leading faculty members at Trial Lawyer’s College. Mel, thanks so much for taking the time to chat with us.
Thanks, Scott. It’s good to be here. Appreciate your warm introduction. Felt good.
Mel, can you share a story with us of a case that had a profound impact on you?
Yeah, I can. So, I get a phone call from a friend, and he asks if I would be willing to come in and try a case that we would likely lose. It’s always an interesting prospect for a trial lawyer when someone calls you and says I’m gonna lose this case most likely, can you come in. So there’s a struggle. Am I gonna try to become the hero? Am I gonna fix the problem? Is that my role? I just said to myself I need to be available to take all kinds of cases and to try all kinds of cases because you know, Scott, I don’t want to be the lawyer who just tries the easy cases. I wanna be the lawyer who tries the more difficult cases, because I grow. So, I said yes.
I had three days to learn the case. It was just a few weeks ago we tried the case. So, with that backdrop, I fly to Minneapolis. I’ve got a Friday, Saturday, Sunday. We pick a jury on a Monday. The interesting thing is the lawyer is a super dialed-in, amazingly intelligent, empathetic, wonderful human being, but he hasn’t learned some of the thing that we learned at the Trial Lawyer’s College about understanding the story, how to discover the story the right way. How to connect with the client.
So while this lawyer thought he’d really connected, when I arrived and we started going through with the client and I started taking him back and recreating certain scenes of his life, we sat for six hours. All of this time, these very few hours that we had, these three days we were spending all this time with the client. He was our main witness. It’s always fun to see that eye opening happening with the other lawyer, and he said to me afterwards, “I had no idea this was inside of our client”, which was a really good thing.
But again, we had our client, and we had all kinds of evidence that was gonna potentially kill us. And there should be a foreboding doom here, because as I learn more and more about the evidence, I realize that we had an almost insurmountable task. But in learning about the client, there was no question that was supposed to be there. I was supposed to be talking about race in Minneapolis, Minnesota. Racial discrimination in the workplace. I don’t do a lot of labor cases, but I’ve done some.
My client, he had grown up in the projects in Florida, and when this Wyoming kid hears projects, I almost think it’s a colloquialism. I think it’s just a way that we talk about in society where African American people often live or lower income people that are predominantly African American or Hispanic or whatever, they’re lower income, and it’s almost a prejudice in the way I think about it or other people think about it.
I start from that premise, and I remember asking Billy, I said, “When you say projects, do you mean …”. He said, “It’s a government project.” How can a 50 year-old white man from Wyoming not really know that the projects are not a colloquialism. They may be, but it’s really a place where people of lower income go to live. So, that experience wasn’t in my makeup. I didn’t have a life experience with it. I can see it on the news, I can read about it, but I’d never experienced it.
And that one indication of my own prejudice was the beginning of my sharing. Because we have an African American guy who grew up in the projects, sold drugs on the street corner at age 10, running money for the gangs, fell in love, and somebody believed in him for the first time, and he realized he was smart. And he goes through college, he gets his MBA, and he makes it into the ranks of American corporate culture that is filled with lots and lots of white people. And in management, very few African Americans.
So, it really was a case about how African Americans struggle in a place that’s inherently racist and discriminatory. And how do we talk about that. How do we talk about that? How do I talk about it? I’m being asked to come try the case, and I’m a kid from Wyoming who wants to believe just because I played college football that I’m not a racist. Of course, there are parts of me that are racist and discriminatory and prejudiced. I realized I had to own that.
My co-counsel who’s never been to the Trial Lawyer’s College was like, “What? What are you gonna do?” I said, “We gotta know right away.” And we’re never gonna know right away who on this jury has prejudice in their life story unless I share a little bit myself. So, that’s how the trial began with a three hour discussion with the jury about race. And I started with my own prejudice. How sometimes I stereotype. I don’t know why. And it doesn’t feel good. Who shares that experience.
So, to have that feedback in the beginning, again we affirm that I’m supposed to be in this place telling this story. Our jury was very diverse. The interesting part of what happened during the trial was that I called our client, I did the voir dire, I did the opening statement as my co-counsel asked, but he was in charge of all the documents and a lot of the different cross-examinations of the various people, which were white person after white person after white person in management saying that well, we like Billy, but he wasn’t really a leader. He wasn’t the kind of leader that we needed to have.
Well, wait a minute. It’s an all white department. And they’d say well, no, we would never do this based upon his race. He never raised it. How could it have been racial if we have a human resources department, and Billy never raised it with us. Well, maybe he’s stuck in the same culture. Maybe Billy himself has become the whitest person there in order to survive. Maybe he didn’t recognize it himself. There were no racial slurs or jokes, he was just treated differently
But as you go through the evidence and you find person after person, white person that comes up, “He just didn’t lead. He didn’t have the leadership qualities.” I started to think to myself wasn’t that what they used to say about black quarterbacks? You know, they’re good at other positions, but they can’t lead. They’re not quarterbacks, which is code for, I believe, white people are smarter than black people. They can’t be leaders. They’re hard workers. They’re great running backs. And I felt that. And I still feel it.
And it’s what was happening to Billy himself is that he was getting locked in to this paradigm where he really couldn’t understand. I’m mean, take the kid from this horrible challenging childhood and all the things he’s had to overcome that any kid from a poor neighborhood has to overcome, and then make him black and have him overcome all these things. And now to survive in the white world in Minnesota, that survival space deprived him in a way of his own experience. And he’d lost the ability to truly understand. For the first time he finally said I believe this is because I’m black.
But as we’re going through the evidence and hearing from white person and white person and white person and saying he’s not a good leader and he was having some problems with these particular metrics, and we realized that there was way for this jury to not have to say to themselves I have a little bit of racism in me. And it was through this idea that he had not been a good performer because there was some evidence of those performance problems, which is why it was a challenging case. We didn’t find Ku Klux Klan stickers or hoods in some closet of some upper level management person. There were a couple of stories that could be interpreted as hurtful, but there wasn’t this overt evidence. It’s just this disease in America, in corporate America I think, that still persists–we saw it in this last election–of racism.
So, Scott, fast forward to the end. I don’t wanna give it away too quickly, but I gave the closing argument, and my co-counsel did a couple of cross examinations, and some of the witnesses were really scary for us. They were competent, articulate, well educated, really nice men who came in and said it wasn’t about race. He just wasn’t good performer. All the metrics, Billy did great. But on some of the leadership skills in terms of the performances, he had not done as well. But they’re all subjective. So these nice, well meaning, not evil people who can’t see their own racism or discrimination or prejudice in themselves could pass a lie detector test, a polygraph, that they’re not racist. And when they testify, you believe it. And why is that? Why is it easier to believe that? Because if we as the jury don’t find racism in this case or prejudice, we don’t have to face that in ourselves.
And this jury, we lost. They deliberated a long time and there were tears and people were obviously upset, but they said you just didn’t prove that it wasn’t also cause. And the instruction in Minnesota was you’ve gotta show that the predominant motivating factor was race.
So, that was a hard thing to be a part of. I suspect that a trial lawyer’s podcast, you’d wanna hear about the successes of a trial lawyer, and I wasn’t successful. We didn’t succeed in winning. But whether it’s a rationalization or whether it’s real, I won. And my client won. And my co-counsel won. Losing was hard, hard on his wife, and hard to be able to tell his children, but he was a great employee. He got a job three months later with another company that treats him right. So, he’s gonna be okay, but he took a stand. And the discussion of race in America happened in a courtroom in urban scene of Minneapolis, Minnesota. And a kid from Wyoming was a part of that.
My takeaway was I don’t want to be afraid to lose. ‘Cause if I’d been afraid to lose that case, which was likely gonna be lost and was lost, I would have been … I wouldn’t have had the lesson. I wouldn’t have had the experience of being part of a discussion that might change someone somewhere down the line where those jurors might have that. And we had a older white man as the jury foreman–big surprise. We couldn’t get rid of him with a peremptory challenge, and so there he was. And he helped decide the case. Maybe something there will provide him an avenue later on to make another decision.
Scott Glovsky: Say more about this concept of losing, because we’ve all been there, and it hurts. And I know that this loss must’ve hurt you.
It did hurt. It did hurt. I’m super competitive. I know how many cases I’ve won. I know how many cases I’ve lost. But I’m honestly losing track of that. There was a time when I could tell you every case I’d won, every case I’d lost, and it weighed on me. It doesn’t weigh on me as much anymore. It’s not that I’m less competitive and it’s not that I don’t care. It’s that it’s not my job to decide cases. I’m not responsible for the verdict. The jury is responsible for the verdict. My job is to honestly tell a story as best I can, and you can tell the greatest story in the world and lose.
The thing for trial lawyer, for me it’s where’s my role. If I lament so much the loss as if it’s my responsible, am I really available for the next client or does fear take over my decision making? I have to put the onus, I have to put the reason for the verdict where it really does belong, and that’s with the jury.
Now, are there things I could’ve done better? For sure. Every time. But I didn’t decide it. There were plenty of things this jury could’ve done and decided this case the way I think they should have. But who am I to say who they’re supposed to be?
How did you get to this place where you can logically and emotionally and intellectually have this sophisticated and great perspective?
Well, thank you for saying that. It makes me feel good to hear you say that it’s sophisticated and developed. I don’t think it’s a protective mechanism or a rationalization. I really don’t, Scott. I think that this is a place where I’m learning that as a trial lawyer, we put so much energy into our clients’ cases and their stories, and we learn to love them, and we learn to love their story, and I don’t love them any less. But when I remove my ego from the process, my own fear of failure or my own self adulation when I do well, then it allows me to not have all that energy be sapped away with a loss if I give the responsibility where it belongs.
And now, I’m more available to other clients. I’m more available to my own learning and growth. If I’m lost in this, this self flagellation where I’m so angry at myself and beat myself up for things that may not be my fault, it’s a waste of time. I’m not growing. I’m wallowing in the self-pity of ego. And that doesn’t allow me to grow. But I learned it here. I learned it at the Trial Lawyer’s College.
What impact has this case had on you?
It’s reinforced this idea that I want to be fearless in selecting cases. I want lawyers … I didn’t know that I wanted this. I want lawyers to come to me with cases that are cases that they feel they’re not equipped to try and that they want to partner to try. Because I didn’t eclipse my partner. I really wanted him to have an experience too, and he did too, and he tried part of the case and called some witnesses and did some great cross examinations. But I’m learning as I go through things like this is that I really wanna be in the discussion.
I think we’re change agents. I think we are leading the discussion in America in courtrooms with juries if we get to try cases because we’re not trying cases anymore. But that discussion with people in an honest setting allows us to do a whole lot of education for us and for our communities on what matters. It’s our place. This is our place for assembly. And I wanna be part of that.
So, I learned that I’m not as hurt by the loss, and that’s an okay thing.
Has it always been that way?
No. No, no, no. I’ve been devastated. I’ve been devastated with losses. I’ve been high on my horse. I guess I’m still guilty of it. Go on my website and you see record verdicts. Oh, I wanna talk about those. I’d love to talk about all my record verdicts. We could spend four or five hours talking about all the record verdicts.
What about the losses? That’s where the real growth happens, and there was a time when it really hurt me or I would talk about my wins for a long time, and so being caught up in who Mel Orchard is or whatever, and even use my name in the third person, sounds weird. It’s not interesting. It’s not where I can grow, but it took me a long time to get there. It took truth tellers. Surrounding myself with truth tellers. No sycophants, but truth tellers. People who know me and love me and want me to grow and don’t tell me what I want to here. They tell me what I need to hear, and finding those people and making sure they’re part of my life is how I try to stay grounded.
How did you find those people?
I hate to keep saying I really did start to … I have some friends, and I have some family members that are like that, but I found a lot of people that are at the Trial Lawyer’s College. I hate to keep saying that, but that’s where I found people who were willing to love me and look at me and reflect honestly about what they were seeing. And that allowed me to do it too. With me and with them.
What advice do you have for young lawyers who are just starting out?
Some advice for young lawyers, I think that making sure that you surround yourself with people that nurture you and don’t take from you. Surrounding yourself with mentors who have done great work but that aren’t in love with themselves. Being interested in not just the work of being a lawyer and not just the book work or not just how to be a better motions practice lawyer understanding how to make sure your citations are correct, which are all important tools, but kind of understanding the process of what matters with clients. Getting used to things like role reversal, really finding out where the client’s needs are.
There’s no shortcut for the tools. You need to be a great writer, you need to be a great communicator, you need to be a great researcher. It matters. And it’s okay to be some associate doing a bunch of research, working a lot of hours and learning about those tools. It’s like the tools we use at the Trial Lawyer’s College. To go through those over and over and over again is okay. Pay your dues. Because once you have those tools down, once you feel competent in doing certain things, taking depositions, sending out discovery, how to deal with a judge, how to deal with motions and limiting, how to deal with jury instructions. Once you feel competent in those areas, what it does is it allows you to be creative. If you do the hard work in the beginning, now that’s a license. Now I can say well, I’m pretty comfortable with those things, how can I continue to be a better advocate for people? And now, we’re here at the Trial Lawyer’s College, and we have that ability to take all those tools and expand them.
Mel, I know you’re about to take a four month sabbatical from the practice of law.
Yeah, that’s weird.
Why are you gonna do that?
Part of a firm policy. Something the Spence Law Firm instituted. You said in the beginning, I was the managing partner. I’m one of three managing partners. We’ve switched those roles. I only say that because I don’t want to pay myself on the back for something that I don’t do all the time. But one of the things that the management committee did for the firm was and then we took it to the partners was instituted a sabbatical policy. The feeling was that it’s worked for other firms to re-engage and be re-energized and to make sure that we’re staying balanced. Balance as a lawyer is so incredible with family, friends, with your happiness. It’s so important. It was my turn, but I kind of put off because I do love to work. I really love working. I love my job as a trial lawyer.
But I’m gonna take this opportunity and try to figure out where I’m gonna be. Now, I will tell you a little secret is I’m teaching three different seminars during my sabbatical, but that feels like growth to me, because I love to teach. I love to be involved with lawyer organizations, so I’m gonna do some of that too.
Mel, thank you so much for sharing your time with us, for being the great human being, the great lawyer, the great teacher that you are.
Well thank you, Scott. So nice to hear those words, and I love what you’re doing, man.
Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate if you could give us a good review on iTunes, and I’d love to get your feedback. You can reach me at www.scottglovsky.com, that’s s-c-o-t-t-g-l-o-v-s-k-y .com, and I’d love to hear your feedback. You can also check out the book that I published called “Fighting Health Insurance Denials: A Primer for Lawyers”. That’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials.
Have a great week, and we’ll talk to you in the next episode.