Making a Living and Living Your Best Life as an Outdoor Recreation Lawyer

John Reed [00:00:00] It dawned on me recently, that one thing all sticky lawyers have in common is authenticity. Here's what I mean by that. 

[00:00:11] First they have authentic brands. A personal brand is a promise. It's a promise that you have the skills and the talents to deliver and perform. Sticky lawyers fulfill that promise by meeting and exceeding expectations. And when you do that, you foster trust, which is ultimately the only currency that matters for an attorney. 

[00:00:31] Sticky lawyers are also true to themselves and their aims and their values. Rather than having choices made for them, they forge their own paths, which makes success — however they define it — more fulfilling. And because success breeds success, sticky lawyers tend to generate their own sustainable momentum. 

[00:00:50] Today's guest is living his best authentic life, both in and outside the practice. In fact, he's chosen to have those two aspects of his life overlap genuinely and in harmony. And when we say outside the practice, there's an additional meaning. 

[00:01:06] Forrest Merrithew is the founder and principal of Conatus Counsel, where he has blended his legal acumen with his love of the outdoors. The choice of his law. firm's name is purposeful, literally and figuratively. Conatus means a natural tendency, impulse, or striving inclination of a thing to exist and enhance itself. 

[00:01:26] Forrest welcome to the podcast. 

Forrest Merithew [00:01:29] Thank you very much for having me. Good afternoon. 

John Reed [00:01:31] When you meet a stranger and they ask you what you do, what do you tell them? How do you define your practice for somebody? 

Forrest Merithew [00:01:40] That's a good question.

[00:01:41] Generally my practice is probably defined in the elevator pitch as fractional general counsel services for passion and social impact-based endeavors. 

John Reed [00:01:51] Okay. You got to flesh that one out for me because, passion and social impact endeavor. I mean, it's curious. You've got me, you hooked me, but I want to know more. 

Forrest Merithew [00:01:59] A lot of it comes from my own passion to start with. I grew up in a construction family, sort of ne'er do well residential construction family, and started working on job sites when I was young. I did that all through high school and even summers of college a bit while also being competitive in soccer in school and being fortunate to grow up in the Blue Ridge Mountains and the Appalachian Mountains. So, I had a lot of outdoor activities, as well, that were on the doorstep. 

[00:02:20] And then it was during college with other peers that were more professionally based, maybe from families or parents that had more of your typical corporate jobs or professional services, that I started to realize that I was not going to be able to do my personal activity passions and also work with my hands and body. There would be a conflict in that essentially. If you got injured, then you potentially couldn't work and make a living. And if you were worried about getting injured and not making a living, you really couldn't fully put yourself into mountain biking, skiing, those types of things. 

[00:02:50] So that was probably one of the first steps where I was passion-based and making decisions in life and realizing that I wanted more of a office or professional services type career and opportunity so I then would have the opportunity to preserve my passions involved in the outdoors. 

John Reed [00:03:05] The context that you've created for yourself and your profession is the outdoors and I think the term is OREC, outdoor recreation. How important is passion, not only yours, but being able to understand the passion of the clients that you work with?

Forrest Merithew [00:03:25] It's very important, I'd say about five years ago, the federal government came out with the REC Act, which essentially was known as the big publicity that measured how much the outdoor recreation industry contributes to the national GDP. And that came out at a very large number. 

[00:03:39] At the time they said it was around $860 billion. I think now it's already up to $880 billion since then. That was a big turning moment for the industry because we were starting to actually then figure out a way to use the numbers to affect change rather than sort of be a side gig. Especially in comparison to other industries that that large cumulative number was comparative to, you know, automotive, pharmaceuticals and other big industries.

[00:04:04] So it caught the attention of a lot of big brands, industries, law firms. But what they didn't realize is that big number, it's cumulative of so many smaller numbers. Most of those other industries have bigger margins. There's less players, more lobbying involved, concentrated efforts. And the outdoor industry really, I mean it's probably the most diverse, hopefully now from a diversity standpoint as well, just from a pure, size and scope of businesses and endeavors and involvement where the big picture is made up of so many smaller players and such small margins that it really only exists because of passion. I think if people didn't have the passion to be in the industry and do those activities and then provide products and services for others to experience those activities, or to support them in doing it, if people chose profit over passion, the industry almost wouldn't exist to some degree due to what it is and the margins and how it's come about and grown.

John Reed [00:04:56] I can't think of that many other industries where a hobby, an interest, something so personal to somebody becomes a livelihood. And you can have smaller players where they see a need within the industry or within an activity and can devote themselves to it. 

[00:05:16] I'm just curious about the types of clients you're working with within this kind of diverse portfolio of interests and how you're helping them to channel that passion.

Forrest Merithew [00:05:28] And that's what's neat is a lot of my clients are in the outdoor rec specifically. It's services and products directly related to outdoor recreation or parallel to it almost. But then there's a lot of tangential supportive industries. And I say supportive because a lot of times it's those industries that aren't technically OREC, but they have bigger margins and the people still have the passion for the outdoors and they support it.

John Reed [00:05:50] Say it: beer. Beer. You represent companies in the beer space. 

Forrest Merithew [00:05:54] Beer and alcohol is your first example. Once you get the brewery operations, and I have a few brewery clients, so it's fine. 

John Reed [00:05:58] Okay. So, rock climbing and all that stuff, that's great. But you need, you need a beer. 

Forrest Merithew [00:06:03] Yeah, and that's the thing is, I mean, once again, the outdoor industry wouldn't survive if the people didn't have strong enough passion to put, you know, passion over profit to run businesses in the outdoor industry. But also at the same time, it might not survive if we didn't have some of those tangential players that were financially supportive. And you know, their industries had bigger margins so they could then turn around. And their passion is probably beer making too.

[00:06:24] But there's so many people in a lot of the outdoor towns that have outdoor recreation infrastructure. They have a high number of breweries per capita and each neighborhood has one, and those types of things. 

[00:06:33] And I do think they're sort of hand in hand, that you see people finish runs or bike rides and they meet at a brewery. Or we've even had, you know, adult soccer leagues supported by them, sponsored by them. And then you turn around and see those breweries that are financially able do pretty big investments in advertising, athlete sponsorship, and other areas of the outdoor industry, in addition to supporting local trails and recreation infrastructure as well, whether it's on their own properties, parallel to, or just in a community base.

John Reed [00:06:59] I'm not putting words in your mouth, I hope, but because there are smaller players, despite the largeness of the industry, not all of your clients are necessarily startups. They're longstanding small businesses, and maybe they're fine being small without seeking aggressive growth. You're kind of all across the spectrum in terms of your clients, aren't you?

Forrest Merithew [00:07:20] That is very accurate. Yes, absolutely. Being a smaller law firm, solo practitioner, and sort of having that passion based, certainly a number of my clients are what you'd consider the smaller end from a business standpoint perspective. But it does run the whole gamut. 

[00:07:32] And you're right that there are a good amount of businesses in the outdoor industry that have been around for years and are of decent size and they want to continue doing so. There's a group of businesses, like any startup that is looking for an exit probably and a payday opportunity and credit to many of them for getting that. And I've seen plenty of them also turn around and parlay that into another idea, another opportunity. Or being able to parlay that into continually working, like you get the investment bought out, but they recognize your value in building what you had and so you're then employed with them. 

[00:08:03] But there's also a large amount of the businesses where, once again, they're doing passion over profit. And so, their goal is probably sustainability, being involved in our local community, providing, potentially, ownership opportunities for employees. Employee-owned is very common in this industry or family membership or family and friends ownership type. They're thinking long-term, more sustainably, than build and exit.

[00:08:25] I would say it's much more likely in the outdoor recreation industry to have that type of mindset. 

John Reed [00:08:29] Right now, today you've got, in the common vernacular in the OREC space, you've got Moose Jaw, and you've got Patagonia. And you've got Patagonia, where the founder grew it on his own terms and then ultimately decided when he wanted to exit that it was not only going to be on his own terms, but in a very sustainable way consistent with his values. 

[00:08:51] And then you've got Moose Jaw that went through several acquisitions, private equity, Walmart, Dick's Sporting Goods, and now it is no longer, so it lost its way. And I wonder, are you counseling people on that massive growth that they want? Are you also counseling people on just holding onto what they got and being authentic and staying true? 

Forrest Merithew [00:09:15] I mean that's definitely one of those things that comes down to client decisions. Yeah. But we certainly, when talking with clients, that's a big part of what I believe: providing more general counsel resources than just what you would call traditional law firm project-based, is that those are the type of conversations I'm having and trying to have.

[00:09:30] What are your long-term goals? What are your short-term goals? Where do you see yourself? What resources do you have, do you expect to have? And trying to take into account more of a holistic picture than, I want something done. Here's the price that can be done. And we'll do the project, send you an invoice. 

[00:09:45] That's a great opportunity, obviously for me from a business side, you would say long term, which is absolutely true. But at the same time, I'm not trying to maximize necessarily at the cost of my clients each individual transaction. It is that it's sustainable for both.

[00:09:58] But certainly those are discussions that are had. A lot of times I've seen in the outdoor industry that once bigger financial players get involved and you have some of those investment groups and stuff, it is unfortunate that a lot of times some brands, businesses don't make it. I would say that's more likely based when it's like brand value versus unique product. If you have something that separates you out to consumers and users and a product itself versus branding that's a big difference though long term. 

John Reed [00:10:24] So let's, let's talk about your journeys. There's a couple journeys here that I want to talk about. The first is, how did you build this practice? How did you go about promoting your brand and attracting people that would want to work with you?

Forrest Merithew [00:10:38] I would say to take a step back first would be to seeing that there was a, a real need in the industry for somebody to step in and assist people on the front end. I think one, there was trust issues that a lot of people in the outdoor industries that are coming up with new ideas, whether it be service or product based. A lot of people don't necessarily come to it from a finance job or a white-collar job. It's really that they were river and raft guides, either growing up or in college or even after college, that fostered the idea for a new product or to create their own service provided, that type of thing. Or maybe they were with AmeriCorps doing outdoor, you know, trail maintenance or construction or that type of thing. 

[00:11:16] So the first step is recognizing that there was a need for a couple reasons, and one was because I think there was a lot of distrust that people coming from those backgrounds didn't have a lot of trust to, for white collar type professions. 

[00:11:29] And then the second was just from a services standpoint. I just kept feeling that I was seeing a lot of services and content related to them and products that I felt was not protecting the underlying owners and companies, and I was really concerned for them, to be honest. I was really concerned that there was a lot of liability out there for people; that I was using products or I appreciated the activity or the ingenuity for a new product for an activity, and I was really worried that the liability for them and probably some big potential liability opportunities existed that hopefully with some counseling could really be avoided. 

[00:12:04] So the first part was recognizing the need, and then the second part goes to your question of how to do that, how to grow that. Fortunately, and that's changed a bit since Covid, but the outdoor industry has always done a pretty good job of its trade shows and conferences. There were many more before Covid than there are now. But OIA, the Outdoor Industry Association out of Boulder, it's the retail side of the industry association. They're always good about putting on two trade shows a year, a summer, and a winter trade show, sort of targeting the goods respective to that seasonal change.

[00:12:34] And with the trade shows, they would put on learning sessions and conference related openings statements by the bigger picture things. And so, it was being prepared to make the investment, I would say, and figuring out how to get in the outdoor industry. 

[00:12:49] From a product standpoint, you know, retail standpoint, it wants to be obviously as inclusive as it can be, that generates numbers, income, and revenue. But it is a little bit exclusive as well that, you know, you sort of are supposed to be part of the industry to be able to attend certain industry events, although there are pay-to-play opportunities as well. And so, it was figuring out how to be a resource. 

[00:13:08] My first outdoor retailer, I was invited by someone that created a new startup area of outdoor retailer called Venture Out to be on a panel. And the panel was about contracts and expectation setting and protecting yourself. And so, once the doors started opening, I then had enough contacts to be able to, if I weren't invited, to at least be able to get permission, a pass to come to certain events and have enough contacts to then say, yeah, this person's in the group, they can come.

[00:13:32] But it was attending trade shows and conferences and really, fully committing, like fully going to those, going to as many sessions as you can, talking to as many people as you can. And a little bit less, I would say from a cold call sales standpoint and more a, "I'm a recreator. I believe in the outdoors. And I believe in supporting the things that support the outdoor industry and environmental conservation and protection, public land access, diversity user groups, and the things that relate to it."

[00:13:59] Then the final one that helped absolutely was, and this comes a little bit from my personal background and my beginning of practice law in other areas, was my personal experience in outdoor recreation that I was fortunate to grow up around Asheville, North Carolina, and the Blue Ridge Mountains in Virginia and North Carolina. So, I grew up around people whitewater canoeing and rafting and kayaking, climbing, mountain biking. I engaged in as much as that as I could at the time. I was probably limited somewhat financially on the product side. 

[00:14:26] But it was being familiar with the goods that are involved, you know, bikes, climbing gear, and the physics that are involved are really important. I think. I think a lot of product liability and personal injury claims come down to like how the incident occurred, which I learned through then being a commercial litigator, complex litigator after law school.

[00:14:42] And so it was sort of being able to tell people like, there are easy ways to decrease your liability, protect your IP. You know, it's simpler than you think, essentially. But it's only simpler than you think if you know what you're doing. 

John Reed [00:14:55] It's one thing to walk the walk or hike the hike as it were, right? You're also a user. You're deep into whatever the product is or at least the type of product is. Knowing what it should do as well as what it does. Was that your calling card? Was it, “I'm one of you and I understand at least what you're trying to achieve here?” And here's the follow-up, Forrest. If you're doing that, what are the other lawyers doing trying to get the business from these people? 

Forrest Merithew [00:15:23] I would say that's primarily the calling card. Yes. And so the first thing to, that's very important to say, because I don't want to act like this is some new area of law. I mean, you've had guests on before that practiced in very similar, if not overlapping areas of law.

[00:15:35] And I'm not the first by any means. Jim Moss out of Denver, Colorado, is one of the first really liability outdoor rec attorneys and he's general counsel for the Boy Scouts of America, and he's worked with ski resorts. So, I would say, you know, I'm not the first, there's others out there that do it, but the ones that are like me are walking the walk.

[00:15:52] And, do it talking the talk. The ones you see that do stick out are the ones for very large firms that rent tables at these trade shows where if you walk into an outdoor recreation trade show, generally it's a pretty neat experience. I mean, it used to be a big party, but budgets have been trimmed, COVID occurred.

[00:16:08] But there are great stories from the nineties about the ski industry association trade show in the winter, just being, you know, you have all your sponsored athletes there. Happy hour at these trade shows starts at 4:00 PM and that actually means these booths that are decorated with mountains and amazing photography and cool outdoor gear, you know, colorful, like they have a bartender pops up at from four to six till the trade show closes.

[00:16:28] So, you know, it sticks out when you have just a blank white foldout table with a little placard for the name of law firm on it and you have two people in suits. Yeah. I mean, everyone else around -- like flannel. The joke in the outdoor industry is, you know, flannel is the outdoor recreation suit. That's your professional attire, is a flannel shirt and either jeans or some sort of, you know, high tech pant gear, and of course not shiny shoes. 

[00:16:49] But it is, I'm one of you and being recognized of that. It's not like you have to convince people of that; I really think it's something like any hobby or interest. The people in the outdoor industry are going to sense it just from what you talk about, how you dress, how you carry yourself, and all those kinds of details. It's not something you can pretend to be, I guess you would say. 

John Reed [00:17:06] Talk about your other journey. You didn't start out as a fractional general counsel. You didn't start out working with OREC industry players. Talk about your career path within the law itself.

Forrest Merithew [00:17:21] So I grew up in a residential construction family, sort of a lot of stick-built homes. When I was five years old, my family made me an offer that, if I wanted to earn some money, I would be paid a dollar an hour to clean up job sites.

[00:17:31] So I was usually around job sites a lot. My dad, stepdad, and mom were all general contractors at one point or another. And so, when I wanted to work, I could work then, but I was still a kid. So, when I wanted to play, I could play around the job site and play with random leftover construction materials or in the woods around.

[00:17:47] And I did, I spent a lot of time in the woods growing up. We lived very rural in Virginia for a while in a two-story logging sheet cabin with no wired electricity or indoor plumbing for a couple years. We subsisted off of a eight tier garden and some fishing and hunting, in addition to supplement from a grocery store that was about an hour away that we'd stock up at every once in a while.

[00:18:05] I had that opportunity to be around woods and water, streams and lakes. And, you know, make the most of it as a kid. Sticks, stones, and dirt, like that's sort of all you need as a kid to some degree, to have fun.

[00:18:17] And so from going through construction, through college, then I took time off from that and pursued other endeavors. I was a substitute teacher in San Diego during the school year. I was a surf instructor. I worked at a surf shop in the summer when I wasn't substitute teaching. And then at nights, I was working at a number of different bars and restaurants, and that was my time between undergrad and law school.

[00:18:36] I started law school actually with the goal of becoming an environmental attorney. You know, your typical EPA environmental litigation. In my head it was try to prevent the environment from damage, but through that training, through law school, I came to discover it more would be trying to fix and hold people liable for damage caused.

[00:18:53] And I was really frustrated with that system. Just the challenges to me felt unequal for environmental justice. And a big shout out to everyone that does it, because it's to me an unfair system. And you're sort of, you're fighting uphill. But to me, I just, it was a very competitive with not a lot of job opportunities because it's not a resource rich side of the law to be on. Obviously, most of the resources are on the other side of environmental regulations and companies trying to get around them or figure out loopholes or whatnot. 

[00:19:18] But it was during law school that I decided that environmental justice wasn't necessarily the best way, and I was looking for more typical law firm jobs at first, knowing I had student loans coming. And then also I really started to appreciate business, dabbling at clinics and that type of thing. 

[00:19:33] And so my last year of law school, I interviewed with a firm for a clerkship, and it was in a construction defect defense firm. So, they defend contractors and subcontractors. At the time I was in San Diego, California, and California has SB 800 litigation, which is streamlined construction defect litigation. Essentially the courts and legislature recognized that throughout the seventies, probably sixties forward in California, they had a large amount of people move there. A lot of wealth was amassed and a lot of decently large-sized homes and home communities were built quickly.

[00:20:02] Whole developments would find a plaintiff's attorney and they would get a list of all the issues that were in their homes, and they would start this litigation. And so, in my interview, I was able to tell the hiring partner my personal background in the construction industry and my intimate knowledge of how a home gets built. I mean, when I was on job sites, it was from five years old, cleaning job sites through high school and college where I was operating heavy machinery, involved with the grading some, all the way through finished carpentry and doing some plumbing installation and that. And so, I got that clerkship. I presume probably partly because of my personal experience in the construction industry. 

[00:20:34] I graduated law school in 2009, which was not a great time to be looking for jobs on the professional market. But I was fortunate that the firm I had the clerkship with offered me a job out of law school, subject to me passing the bar.

[00:20:46] And so that all occurred, and I started working as an associate attorney with the firm, it was a small to midsize firm, so I was able to sort of be back up support for our trial attorney for trials and one of the main attorneys attending depositions. 

[00:20:58] And so you got these pretty big tables with 10 to 20 attorneys around them. Each deposition, someone has an expert probably sharing details about what that expert has found, whose fault they think it is, where the problems are coming from. And I was able to look around the table and see that, you know, I was taking notes, but there were other attorneys, that's all they were doing, I mean, head down, typing as fast as they can, also recording. 

[00:21:20] And I realized they weren't able in their head to connect what the expert was saying to the situation. They were simply taking a bunch of notes so they could provide those notes to their experts, so their experts could tell them, "Hey, here's potential liability for your client." Or here's why not. Essentially give them the analysis. And I was able to take similar notes for our experts. Of course, we are still using them, but at the same time I was able to go ahead and formulate my own analysis in my head of, yeah, I think I can see where this going. I think I can see who the potentially liable parties are. I think I can see the next questions to ask. 

[00:21:51] And so I could go back after a deposition and in 30 minutes let my senior attorneys sort of give them a quick verbal summary rundown while also then sending my notes out to our experts. And it felt like we were ahead of the curve then. We didn't have to wait. We weren't waiting on responses and information and analysis. 

[00:22:07] And so I had a mid-level attorney from that firm got hired on as a junior partner at a different firm and she knew that I had a diverse set of interests and I guess you could say qualifications. I had sort of made it expressed, I didn't just want to be doing construction defect. If we had anything else, I was interested in learning and so I wanted to check it out. 

[00:22:24] The firm she got recruited to, their insurance adjusters, their insurance contacts that gave them most of their work for insurance defense work because that's how most of this was funded, they had essentially set up the business plan of, hey, we're going to have some other stuff coming down the pipeline that's pretty cool. We're going to have some product stuff. Some of it's recreation type, auto market, auto racing, auto equipment- related. Some of it's slip and fall or personal injury, but there's some, you know, zip line-type parks and that. And so, when she got hired, she was made aware of that and that she was going to be in charge of putting together the team for that.

[00:22:54] And she reached out to me and recruited me, which I was happy at the time. It was a good opportunity for a number of reasons. But mainly just that I was going to be getting to do a lot of different things. And so, I was going to be challenged every day with, to learn new things, learn about new things, whether it was the industries or situations I was working on or areas of law tied to it. 

John Reed [00:23:14] One thing that I come across when I'm talking to litigators is a lot of them see themselves as only dealing with risk when it goes bad. There's a dispute because somebody incurred a risk.

[00:23:29] And what I find very interesting about you is you took that view of risk and said, well, wait a second. I not only know what happens when it goes bad, and maybe I can take that and prevent that on the front end as a business advisor, as a fractional gc. But then you also said, I'm going to take what I know, outdoor activities, outdoor recreation, the industry. Forget construction for a minute and just focusing on this other stuff. You embraced your confidence in this knowledge of risk and went in a completely different area. 

Forrest Merithew [00:24:04] A big part of what I was doing was the passion and the intimate knowledge, but it was also that I was frustrated as a complex commercial litigator. I would say almost every lawsuit I was involved in, in fact, could have been avoided by something on the front end. It was also that a lot of people got into situations that they didn't seem to know how to handle, where they just escalated to litigation. 

[00:24:22] And so while I'm not, you know, the active litigator for my clients anymore. I mean, there's still at least 50% of my practice is still conflict resolution. It is still a situation that has gone wrong and how can we solve it? And I do have a lot of confidence and faith that I am able to use creative problem, regular problem solving or creative, to be honest. An escalating conflict, both sides lose money and time. There's definitely somewhere in the middle here where both sides can mutually benefit even though it's a compromise for both.

[00:24:49] But it was the reality of just wanting to avoid litigation and that is part of my practice now for sure is, warning people that I've seen the cost of litigation. And, if you have insurance, as most companies should do, you sort of get the monetary cost covered, but you still have your deductibles, your self-insured and set retention rates. And the reality is I've seen in depositions, I warn people after depositions, be careful driving home. When you're in a six-plus hour deposition, your brain is mush after that. Especially, if you're the witness and you don't understand what's going on, lawyers are shouting objection constantly and giving weird explanations, using weird terms.

[00:25:24] So a big part of the practice is helping people avoid getting to that ultimate formal litigation standpoint. Part of it's avoiding it as much as you can upfront, but part of it is also being in the middle of conflict resolution and figuring out a solution that works. 

John Reed [00:25:37] Tell us some of the matters of which you're most proud, for whatever reason, however you define success, or benefit, or whatever. I'm just curious.

Forrest Merithew [00:25:45] Well, I find myself successful coming from the background I did because of decision-making. I think I was trained fortunately by very caring parents and learned early on that decision making's a big part of success. That, you know, you get into that car when you're 16 with someone drinking and driving that can make a difference is a very obvious one, but there's other many small decisions through life.

[00:26:06] I find myself on the defense side of legal practice a lot because I believe that a lot of lawsuits come out of the plaintiff's poor decision making, which there's of course a structure for. But I do find myself on the defense side and was much more comfortable on that side with helping people avoid claims or, preparing them in their products to help people use their products so there weren't injuries or claims because of that. 

[00:26:27] I would say one of the very first cases when I was in California, and I had been recruited to my second firm that really turned on a light bulb a little bit for me was we had a neat case that involved a female firefighter who was also a motorcycle racer.

[00:26:38] She was what you would say, semi-pro probably, where she wasn't just a weekend warrior on the motorcycle. And she was racing like full on saguna course, like race car courses on a motorcycle, landed down fully suited, you know, very high speeds. And she was also then a firefighter during her week, that was her day job.

[00:26:55] So just a badass person. And she went down on a race, and she was wearing some Italian motorcycle racing gloves, and her hand got mangled a bit, going down at very high speeds and sliding out into the rocks on the side of the race, doing a full slide out. And she would have trouble making a living doing her job as a firefighter with a hand that was not fully disabled, but had been affected, the physical mobility in one of her hands.

[00:27:19] And so they brought a strict product liability lawsuit saying the design on the glove could have done more to protect her. And that was just, it's very interesting. And involves a really cool plaintiff who you have nothing against. I mean, what a great, amazing person and a very unique situation. And then involves these products and it really raises a question. Is there really a glove, absent something Kevlar or something that essentially makes your hand more immobile, like you're attached to the motorcycle that can make it any safer that when you're racing at 200 plus miles an hour on a motorcycle around a course. And that one, we came to a settlement agreement on that. It was resolved through settlement eventually before trial or anything like that. So, it was a compromise in the middle. 

[00:27:55] One of the big product stories I like is Tentsile Tree Tents. Been involved with them since 2013, which was really right after they went viral. And it's sort of, that's how things are fortuitous, is I met them at an outdoor retailer, and two weeks later they had some social media posts go viral, and all of a sudden they were getting orders, you know, much larger than anything they had in their production abilities and facilities.

[00:28:15] And so they sort of recognized like, oh, okay, this is blowing up. We need to take some steps. And so, the first step was doing the instructions and warnings manual with them to lock that down. And it's sort of twofold with an instruction manual. It's not all about liability. A big part of it to me is customer satisfaction.

[00:28:32] If you have a customer that's trying to read, like a company used Google Translate to translate from the Chinese factory into English the instructions with bad pictures. I mean, you see those reviews all the time online where someone's like, I tried to put together this baby crib or this children's toy on Christmas Day and it took three hours.

[00:28:47] Like if all you have to do is have more detailed instructions with better pictures, so they then say, “Twenty minutes after I opened the box, my kid was playing on the product on Christmas morning.” So, there you have customer satisfaction, good reviews, probably going to sell more products. And then also, as long as the product's put together correctly, it's not going to fall apart and cause an injury.

[00:29:06] So at Tentsile, that was really fun because they had a great team. They did great with their image work and branding, recognizing social media, where they were going. And then the second step with Tentsile was from the patent and infringement standpoint. So, like a lot of companies, they produce or manufacture abroad in Asia and unfortunately there's just a lot over the years and it's gotten better, but there's a lot of counterfeit and infringement that goes on in Asia. And products manufactured inside warehouses and factories that are less quality, clearly a little bit different. And so, we were seeing a very large amount of online infringement happening once their products went viral, particularly some of the either flagship or more simpler products. And they already had a patent attorney they were using for that side, and they had attempted to get a patent on tree tents, a utility patent. 

[00:29:53] And they came to discover back in, I think it was 1914, 1916, that someone actually had gotten a patent for a tree tent. Now it looks nothing like Tentsile's tree tents. It's got two tubes that a rope go on each side and ropes go through and you hang them on hooks on a tree, and you essentially have like a tree house that you can hang up. But because the patent office had what was a tree tent, a suspended tree tent in their patent system, they couldn't meet the level of ingenuity for a new utility patent. 

[00:30:18] And rarely do I recommend for clients to look into the design patent because it's so easy to get around for the cost. The cost benefit's tough. But in this case, the Tentsile tree tents were triangular in shape because they were three-pointed. You had three suspension points to lock them in with webbing and get them up off the ground. And so, because you pretty much couldn't make another three-pointed suspension tree tent that wasn't triangle shaped, we were able to really take advantage of design patents, which is, I would say pretty rare to be able to do. And we were able to lock in their niche that, you know, Tentsile has remained the only real known suspension tree tent and hammock manufacturer and supplier in the world now going on over five years. 

[00:30:55] And that was the goal, was can we lock this in for five years at least? Make the most of it. And we really were able to use those design patterns in addition to trademark and copyright enforcement, which I just did some more copyright enforcement for them earlier today. But that made a big difference. And to lock in a niche like that on an innovative product that really hasn't been in the world before, it was a really neat experience. 

[00:31:14] And with working with them, that expanded my abilities to do online e-commerce infringement and sort of the creative problem solve for those things. As well as you said, the advisor side of paying attorneys is great and needed at times and I certainly appreciate it, but there's a lot of ways just by consuming and filling a market niche with your product and or your branding related to it, you need attorneys less. You know, if someone recognizes, hey, that shaped product is that company, when they're looking for that product, they're just going to look straight for that company. They're not going to be shopping around for the cheapest or they're not going to trust other sources, potentially other brand sources. 

[00:31:48] So, it allowed me to be able to work with clients to tell them yes, there's absolutely times for IP registration and using an attorney to stop people from doing the wrong thing and to protect yourself. But there's also ways as a business, steps you can take, that if you do it as much as you can, it's actually probably going to decrease your legal cost and increase your sales. Yeah. 

John Reed [00:32:08] So I have a question for you. This is off the wall. Have you ever had a client that because of your work with the client, you got into a new activity that you hadn't been in before? Or have you ever gotten into a new activity and because of that new activity, it attracted a new client?

Forrest Merithew [00:32:22] Well, it's sort of funny. I'm one of those people that you call a jack of all trades, expert at none, and that's for better or worse. I, you know, it goes along with not wanting to just do construction defect litigation for a good profit my whole career. I always want to be challenged and learning.

[00:32:36] And so I'm regularly getting into new activities as much as I can. Surfing would be one of those. I didn't surf till I was 24 years old and started learning in San Diego. And then similarly, I took the opportunity in summers I was substitute teaching and needed a summer job. And some of my fellow bar restaurant hospitality workers were working at a surf shop. And I recognized like, “Hey, I'm trying to learn how to surf. If I work at a surf shop, then I have access to all these high school kids who are sponsored high schoolers, who are working there over the summer, who will take me surfing with them,” which is then how I learned how to snowboard, in fact.

[00:33:08] And then, I will have access to the equipment. Like whatever shape board I want, we had a demo room, we had all the foam boards. And so it was that access. So, surfing and snowboarding, I didn't start till I was in my mid-twenties and absolutely fell in love with them, particularly snowboarding, more so, which is now why I'm landlocked in Colorado.

[00:33:23] Cost of living along with that is a consideration. But otherwise, I mean, I was fortunate enough to dabble in so many different things that it was more, probably I had to become more of an expert in something I already was aware of or become more familiar with the products than I was, than a full introduction necessarily.

John Reed [00:33:40] You mentioned earlier in the conversation about your dedication to social impact, and you've got clients that are social impact companies in the OREC space. What's different about advising those companies? 

Forrest Merithew [00:33:55] I would say generally, in my experience, the people involved with those companies: one, they believe more in the balance of life across the board for themselves. And they also share that belief. If that's how they're going to live their life, they don't expect you necessarily to be different or to do something much harder for yourself.

[00:34:10] You know that you're going to be profit-based. Like they want to work with others like that and have that work-play balance and the family balance too. I mean, I see that in the outdoor industry a lot. That big part of people. They enjoy doing it because they want to introduce their kids to it. They want the kids outdoors doing activities; the physical and mental stimulation and cognitive health growth from doing physical problem-solving activities together, like rock climbing, getting better at biking, or really anything when you're a kid. That's part of being a kid and growing up and doing activities and getting better at them is really impressive. And we're starting to see results from those studies. 

[00:34:42] So I think it's just sort of you resonate with one another. You're able to share stories of what you've done from an activity standpoint. Able to share how your family's doing. And it's, it's not all just down to brass tacks and business.

[00:34:53] I would say it's pretty neat. You know, some of my clients, I definitely think highly of my experiences of their social impact side, but still in the rec industry. Or there's a recumbent bike company out of Asheville, North Carolina, Outrider, that does both pedal and hybrid. So, it's pedal and electric recumbent bikes, and they do a big thing for injured veterans of the armed forces that, in Colorado, usually annually there's a big conference for those type of product companies to bring products and they'll bring a lot of injured veterans, and they get that opportunity. Like you don't just have to sit at home now. You have this recumbent bike that's pedal and electric-assisted that is built to go on mountain bike trails. 

[00:35:27] There's also another bike manufacturer who is focused on heavier users with the idea that some bikes just aren't able to handle heavy users. But also everyone should have the opportunity to participate in an activity and have that experience.

[00:35:41] And then the environmental side of things is big in the outdoor industry. If we don't have an environment that's clean and able to use, whether it's in the water or on land. In the air as well. A lot of times our outdoor activities here in the west are trimmed down because of wildfires in the region and the air quality.

[00:35:55] So there's a lot I would say that, especially on the environmental side for the industry and myself, going to land, environmental quality, as well as in access and diversity. Openness to diversity there. 

John Reed [00:36:06] Giving back is also a part of your business model. It's obviously very important and personal to you. Talk about that. You've talked about your clients, but what about your specific things? What are you doing vis-á-vis social impact?

Forrest Merithew [00:36:20] So, as I mentioned originally my goal had been to [be an] environmental attorney and then coming out and seeing business. You mentioned Patagonia earlier, like the Patagonia model really spoke to me that we are a capitalistic society. We're a capitalistic world for the most part.

[00:36:34] And so the reality from what I've seen through studying environmental policy in undergrad and environmental law through most of law school, was what's called the externality cost. So, you know, clean air, clean water. Essentially a business can do something and it's going to have a social impact. And so, seeing that through my studies made me acutely aware of those, and it was sort of the idea of how can those costs actually be charged and be part of capitalism on everything, not just the business side, but taking into account environment for that. And so, with that, I've tried to figure out ways to be an advocate for clean water, land, air on the front end, for environmental, for public land protection.

[00:37:13] Public land obviously provides a lot of benefits for environmental protection and well for social protection and opportunities as well. And so that's been direct through donations. I was a One Percent for the Planet business for a while, and donations to them and through that and some of their programming.

[00:37:29] We have the Colorado Outdoor Business Alliance, which is under the nonprofit Conservation Colorado. But the idea being that really to affect change in capitalism, it also involves requiring to affect political change. That legislation is what affects environmental decisions, public land management. And so, what I've come to find is the strongest way to reach bipartisanship is from an economic standpoint. It's proving that there is an economic return to constituents, to, you know, society, to community. And so, it's been talking to folks on both sides of the aisle about the value and the benefits that come from outdoor recreation.

[00:38:04] And so, you know, from being active, from proximity of recreation infrastructure to communities, and that comes from lower societal health costs, higher societal health benefits, and a range of other benefits as well to tangential businesses. Like if you have recreation infrastructure around a community, you're going to come to find that all of a sudden people are looking for breweries and lodging and restaurants and they're going to be traveling there for tourism and develop those things.

[00:38:28] So now it's a little bit more, I can say on the advocating side. And we have some amazing organizations like the Outdoor Recreation Roundtable that really is able to put data and analysis into content and reports to spread out. But I love working with them. I've been able to go to D.C. and lobby for full funding at the Land and Water Conservation Fund, and some other funding for environmental or legislation for environmental protection and public land access and those types of things.

[00:38:52] So, it's gone from like pro bono time for people in need, to a little bit more bigger picture advocacy and lobbying with that time. 

John Reed [00:39:01] Well, Forrest, you have confirmed for me that you are definitely authentic, that you are a sticky lawyer because you are authentic. You make me want to go outside now. I appreciate you talking with us today and telling us your story. 

Forrest Merithew [00:39:15] Well, it's my pleasure and I appreciate what you do and yeah, I would say, I mean, the value of just getting outside, whether it's for a minute or, you know, a day, it provides a return on value. And it's just, we're trying to continue to put together the data to show and prove that out, so we can get more support for outdoor recreation industry infrastructure and for people getting to have those experiences across the board. 

John Reed [00:39:35] Listeners, if you want to learn more about Forrest, please visit stickylawyers.com where you can find links to his website and other information and be inspired.

[00:39:44] Wherever you're listening now, Apple podcasts, Spotify, YouTube, et cetera, could you please take a moment and click the follow button?

[00:39:54] Hitting that magic button ensures that you'll get new episodes as we release them, and it also lets us know that you're a Sticky Lawyers fan. A stickler, as it were. So, thanks in advance for doing that. We appreciate it. 

[00:40:07] Until next time, I'm John Reed and you've been listening to Sticky Lawyers. 

[00:40:10] ​