A Sixth Circuit panel issued a succinct opinion today that serves as a good reminder to counsel attempting to pursue marginal cases: if you cannot formulate a passable argument in support of your position, you should not be pursuing it on appeal.
Jahmir Frank sued a hospital and other defendants for negligently destroying his medical records. But the District Court concluded that simply did not constitute a tort under Ohio law, so it dismissed Mr. Frank’s claim on that basis and certified its ruling as final under Rule 54(b). On appeal, his counsel filed a brief with a thirteen-page “argument,” but that cited only one case and a smattering of regulations and some medical-ethics materials.
The Sixth Circuit was not impressed. It cancelled oral argument and issued a four-sentence per curiam decision:
The district court dismissed Jahmir Frank’s suit for negligent destruction of medical records after Frank failed to make any argument that Ohio recognizes such a tort. His brief before us is similarly “devoid of any legal argument” in that regard. The striking legal emptiness of his brief means that he abandoned the argument and forfeited his appeal. Accordingly, we affirm.
Frank v. Good Samaritan Hosp. of Cincinnati LLC, No. 19-4268, slip op. at 1 (6th Cir. April 15, 2021) (citations omitted).
No attorney wants his work described as marked by “striking legal emptiness.” Assuming they put forth the best argument there was in favor of their position, Mr. Frank’s counsel would have done better simply to advise him to drop the appeal.
Appellate courts take seriously the requirement (found in Federal Rule of Appellate Procedure 28 Tennessee Rule 27) that a brief contain an “argument,” as well as the concomitant requirement that the argument be supported by legal authorities and citations to the record. If what an appellant puts forward lacks a real argument, the appellate court is not going to spend time trying to think of one. It will hold those issues (in Mr. Frank’s case, all of them) waived or forfeited and move on to the next case.
– P.K. 4/15/21
