Silly Lawyer Tricks XXV. You're probably not on the winning side of the argument when the court uses the term 'striking legal emptiness

• Author: Tom Donlon
• Pages: 10-14

Appellate Practice

American Bar Association Litigation Section

Fall 2021, Vol. 41No. 1

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August 27, 2021

Silly Lawyer Tricks XXV

You’re probably not on the winning side of the argument

when the court uses the term “striking legal emptiness.”

By Tom Donlon

This is the latest column in our continuing series on real mistakes and misdeeds by real

lawyers in cases on appeal.

Frank v. Good Samaritan Hosp. of Cincinnati, 848 F. App’x 191 (6th Cir. 2021)

This is an appeal that went bad from the start—and only got worse for the attorney.

The case began as a medical malpractice action, seeking class-action status, claiming the

hospital had a duty to retain medical records for a minor until age 21. The trial court

denied class certification and granted judgment under Federal Rule of Civil Procedure

54(b) against the plaintiff’s claim of negligent destruction of medical records.See Frank v.

Good Samaritan Hosp., 2019 WL 6877647 (S.D. Ohio Dec. 17, 2019). Plaintiff’s counsel took

an immediate appeal.

The appeal was initially dismissed for failure to pay the filing fee.See Frank v. Good

Samaritan Hosp., 2020 WL 1488767 (6th Cir. Jan. 24, 2020). Plaintiff’s counsel moved to

reinstate the appeal, claiming to have paid the fee. However, that motion was denied

because the district clerk had been unable to process the claimed payment. Three months

later, counsel again moved to reinstate the appeal, having finally paid the fee. Over the

hospital’s objection, the appeal was reinstated six months after initially filed. After five

motions for extension of time, plaintiff’s counsel filed his principal (and only) brief in

November 2020.

After canceling oral argument, the Sixth Circuit issued a one-paragraph opinion denying the

appeal because counsel “failed to makeany argument that Ohio recognizes such a tort [of

negligent destruction of medical records].”See Frank v. Good Samaritan Hosp., 843 F. App’x

781 (6th Cir. 2020). The court stated the “striking legal emptiness of his brief means he

abandoned the argument and forfeited his appeal.”Id.