The "Empty Chair" Defense To a Personal Injury Lawsuit

The "empty chair" defense is a tactic where the defendant in a personal injury claim will try to shift fault for the injury to an "absent" third party.

In the context of a personal injury case, when the "empty chair defense" is employed, is there really an empty chair at trial? No, not literally. The empty chair defense is when a defendant tries to shift the blame for an injury to a person or company that is not a party to the case. The missing entity is considered the "empty chair." Read on to learn more.

Why is the Empty Chair Defense Used?

There are several reasons why an otherwise necessary party might not be at trial. One reason is that the plaintiff sued the missing defendant, but reached an injury settlement with him/her/it before trial. In such a case, that defendant is excused from trial, and the plaintiff goes to trial against the remaining defendants.

Another reason is when the plaintiff is legally barred from suing the missing party because, for example, the plaintiff didn't file the lawsuit in time (missed the statute of limitations) or does not have jurisdiction over that party in the state that the lawsuit was filed.

A third reason for the use of the empty chair defense is that the party had been a defendant in the case, but was dismissed from the lawsuit for procedural reasons.

If, however, the defendant was dismissed from the lawsuit because the judge ruled that the defendant was not negligent, then the remaining defendants cannot use the empty chair defense. That's because the judge has already made a legally binding decision that the missing defendant was not liable. In that case, no one is allowed to accuse the missing defendant of being negligent.

How is the Empty Chair Defense Used?

If the potential defendant is missing because it settled with the plaintiff, the empty chair defense can be used, but the remaining defendants cannot always inform the jury about the settlement.

Different states have different rules on whether a defendant is permitted to inform the jury that the plaintiff has already settled part of the case. Usually, a defendant will want the jury to know that the plaintiff has already gotten some money from a settlement.

Defense attorneys believe that, if the jury knows that the plaintiff has settled with one defendant, then it might be less likely to award the plaintiff even more money at trial. The jury might feel that the plaintiff has already been compensated. But if the local rules do not allow the jury to know that the plaintiff settled with one or more defendants, the remaining defendants will still try to involve those missing defendants in the case somehow.

To do this, the defendants will point the finger at the missing defendants in every aspect of the case. The defense attorneys will start with their opening statements. In their opening statements, they will argue that the evidence shows that it is the missing defendant, not their client, that is liable for the plaintiff's injuries.

Then, they will try to get the jury thinking as to why the missing defendant isn't there. If they are in a state that allows defendants to inform juries that the plaintiff settled with a former defendant, they will certainly let the jury know about the settlement. They will tell the jury how much the plaintiff settled for, if the rules allow that. If they are in a state that doesn't allow the jury to know about the settlement, then they will have to be more discreet in their arguments.

When the evidence phase begins, the defense attorneys will usually present evidence that the missing defendant is liable. They will presumably call one or more witnesses to testify that it was the missing defendant, not the defendant at trial, who was negligent. After the close of the evidence, the defense attorneys will repeat the empty chair defense in their closing arguments.

Finally, the defendants will try to convince the judge to actually put the missing defendant on the jury verdict slip. When the judge gives the jurors their instructions, he/she will also give the jury a verdict slip. The verdict slip lists the questions that the jury must answer; it constitutes the official ruling of the jury. In a personal injury case, the verdict slip will contain multiple questions asking about the negligence of all of the parties and how much money the jury awards the plaintiff. The verdict slip also asks the jury to split the negligence between the plaintiff and all of the defendants. If, for example, there is one plaintiff and one defendant, the jury might find that the defendant was 80% liable and the plaintiff 20%. In most states, that means that the plaintiff's damages will be reduced by 20%.

But, in the missing chair case, the judge might put the missing defendant on the verdict slip. That means that the jury will be asked to apportion the negligence between the plaintiff, the defendant, and the missing defendant. The jury might find that the defendant was 60% liable, the plaintiff 20% liable, and the missing defendant 20% liable. That means that the plaintiff's verdict will be reduced by 40%.

Defense attorneys love it when the missing defendant is put on the jury verdict slip because now it is in the jury's mind that the judge seems to think that this missing defendant might be liable. Jurors might conclude that, if the judge thinks that the missing defendant was negligent, they should think so as well.

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