Further observations from Tom Melsheimer and Dr. Nick Nicholson on the Forest Park case.
Nicholson on his arrest
“They came to my home. To me it seemed like a lot of overkill, you know, four or five cars with lights flashing, and folks with guns and vests. In retrospect, I understand. These people are asked to deal with some bad actors. They’ve got to protect themselves. Everybody was very professional.
“My wife and two kids were at home. Six in the morning. Fortunately, they’re both teenage boys, so they kind of slept through a lot of it.”
On meeting one another
Nicholson:
“After the indictment was unsealed, I did realize I needed to retain criminal defense counsel. I fortunately have quite a few friends in the legal community, and one name kept coming up. So that’s how I met Tom.”
Melsheimer:
“I liked Dr. Nick. He was earnest, he was sincere. He seemed troubled, as anyone would be, by these charges. I learned a lot from him in that first meeting, but the most important thing I learned was that he was committed to fighting this.
“After meeting Nick, it was clear to me that this was a case that could be defended, and he was a client that I wanted to represent. He understood it was going to be a long process. He understood it was going to be an expensive process. Those are important considerations in a case like this.”
Melsheimer on the prosecutors
“I thought the prosecution was very capable. They were very well-prepared. They had a game plan and they stuck to it.”
Melsheimer on pretrial preparations, including use of mock juries
The research we did demonstrated that mock jurors were very interested in how the marketing money was spent. That is, they wanted to see that it was spent on legitimate marketing, as opposed to personal expenses. We were able to track his spending and show examples of it, like TV and internet spots. Also we learned that the other defendants had many more “bad e-mails” and that our lack of that kind of incriminating evidence was something we needed to emphasize. The trick was doing that without seeming to take shots at our fellow defendants.
The biggest “division” between us and the other defendants is that we embraced, based on our research, the idea that there was indeed criminal conduct at Forest Park, but we weren’t part of it. Many of the doctors tried to attack more broadly the entire government theory. I thought we would lose credibility if we did that. So our theme was, in effect, there was some bad stuff going on at Forest Park, but Dr. Nick wasn’t part of it. We also used in the mock trial exercise a number of surgeries at Forest Park during the marketing program and after it ended. It was essentially the same average number of surgeries per month. Everybody picked up on that. It was as if “wait a minute, Dr. Nick was acting in accordance with a bribe, why didn’t his behavior change when the bribes stopped.”
The government had not thought that through and they had no answer for it. The government typically counts on overwhelming people with resources and banking on decades of law in the federal courts that is generally pro-government. Many prosecutors haven’t tried hard cases. When you’ve got a client who can put over 4000 hours of legal talent into the case, you can level the playing field.
Melsheimer on writing his memorable closing argument
“I was working on the closing argument almost every day of that trial. I would think of things that I would want to say. I would note things that a particular witness had said and file that away.
“We started working on it three or four days before the trial was over, truly in earnest. We pulled hundreds of excerpts from the transcripts. We graded them out: This is a keeper, this one goes in the maybe pile, this one goes in the trash. We worked on the graphics we would use.
“I knew that I wanted to quote from the Bible. And I spent some time deciding whether I wanted to use the King James Version or a newer translation. That was the kind of detail I went into, because I wanted to make every word count. I wanted to make every word a deliberate choice.”
On U.S. District Judge Jack Zouhary, the visiting judge from Ohio who presided at trial
Melsheimer:
“I thought Judge Zouhary did an excellent job. He was genteel. He was charming. We didn’t always like his rulings. I objected to and was frustrated by many of them. But he was doing his job. And I thought he was a consummate professional throughout.”
Nicholson:
“I thought he was phenomenal with the jury. And I felt that we were going to get a fair trial. I didn’t feel that he came in with any preconceived notions.
“He let us make our case, just as he did with the prosecution. So I was very pleased with the judge.”
On becoming friends
Melsheimer:
“Nick’s one of the great clients of all time.”
Nicholson:
“I love Tom to death. We could get together socially. We don’t need this to be a professional interaction anymore.” (Laughs)
NOTE: Both video and transcribed responses were edited for brevity and clarity.