December 2022 Millar’s JurisDiction - Imaginary Practice

by Richard W. Millar, Jr.

The practice of law is difficult and increasingly complicated. I was sworn in on the morning of January 4th. I won’t mention the year but suffice it to say it was not in this century. That afternoon, I tried my first case: a jury trial in Pasadena involving a “crime” that was minor enough to only require a six-person jury. (Although when it is your first trial, the number of jurors is the least of your worries.)

As in many things in life, it was harder to think about doing than actually doing.

In those days, in the District Attorney’s office in Los Angeles, when you were low on the totem pole, you were handed a file with little more than the police report in it, introduced to the investigating officer, and immediately started jury selection. In that order with nothing in between. I didn’t learn what the case was about until I asked the officer on the stand, “when you first saw the defendant, what was he doing?”

When I joined a civil firm, the concept of discovery was nascent and trial files were often no more than an inch or two thick. In what would seem ironically backwards these days, I had several jury trials before I took my first deposition.

Discovery took over with the wars shifting to depositions and interrogatories rather than trials, and the word “litigators” was coined to describe those warriors as differentiated from those who actually tried cases.

Before computers took over our world, I had a number of cases where the insides of the courtrooms were stuffed to the gills with Bankers Boxes of “stuff” the lawyers felt they needed for the trials. Alphabetizing exhibit designations went the way of the dinosaurs because no one just had only twenty-six exhibits.

Trials have mushroomed into marathon events largely, in my opinion, because of fear. We are afraid that we will leave out something, so we throw in everything except the proverbial kitchen sink no matter how attenuated the relevance, just so we won’t be accused of an unforgiven omission.

And so, I thought, what if we could just pretend we were doing all that without having to actually do it? What bliss. The only problem was that you would not get paid.

It turns out, however, I was not the first one to come up with that idea.

One Matthew Epstein was way ahead of me. He had a very active imaginary practice which had the added bonus that he billed for it and got paid.

There was a downside: he was disbarred and sentenced to a little over three years in federal prison.

Many of us have gone through the process of taking depositions out of state. We have to get the state court to issue a subpoena, it has to be served on the witness, and then we fly to East Nowhere to take it where we have arranged a hotel and a deposition location with a court reporter. And then we hope the witness appears. Mr. Epstein’s version was only slightly different. He arranged for depositions in Washington state, flew up with his client, and had a court reporter record non-appearances when the witnesses failed to appear. And, of course, he billed for it.

The difference was that there were no witnesses. Other than his billing, it was all a charade.

In another case, he told his client that he had won a $52,000,000 default judgment, providing a phony court order on which a United States District Judge’s signature was forged. In an interesting act of foresight, he told his client that the case was not on PACER because the Department of Justice was investigating the defendant.

He also claimed to have obtained a $4,250,000 judgment in a different case that he buttressed with another forged order from a United States District Judge in Washington. This one came apart at the seams when his client went to the court to enforce the judgment.

Similarly, he gave a client a fake settlement agreement which provided that the client would be paid from a government “court of claims recovery fund.” That was uncovered when his client contacted the U.S. Attorney’s office seeking confirmation.

After reading about Mr. Epstein, I have decided to stick with a real practice. An imaginary practice is far too complicated.

Richard W. Millar, Jr. is Of Counsel with the firm of FSG Lawyers PC in Irvine. He can be reached at rmillar@fsglawyers.com.