The "Empty Chair" Defense To a Personal Injury Lawsuit

When the "empty chair defense" is used in a personal injury case, is there really an empty chair sitting in the courtroom? No, not literally. The empty chair defense refers to a tactic used by a defendant, to shift blame for an injury onto a person or company that—for a number of potential reasons—isn't a party to the case. The missing entity is considered the "empty chair."

What Are Some Examples of the Empty Chair Defense In an Injury Case?

There are several situations in which the defendant in a personal injury case might raise the "empty chair" defense.

The At-Fault Party Hasn't Been Identified

The most common scenario here is a car accident case. The driver being blamed for the crash (or their car insurance company) might argue that a third vehicle was involved in the crash, and the driver of that vehicle—who was never identified—is actually at fault for what happened.

The Plaintiff Reached an Injury Settlement With the Missing Defendant

If the injured person reached an out-of-court personal injury settlement with a person or business who played a part in causing the underlying accident, that party might be the "empty chair." In this situation, the party who settled can no longer be part of the lawsuit, but the plaintiff can still proceed with their case against the remaining defendants.

The remaining defendants might try to argue that some or all of the liability rests with the party who settled. But if the case goes to trial, different states have different rules on whether a defendant can 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 compensation for their losses ("damages").

Even if the local rules don't 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.

The Missing Defendant Can't Be Sued

The plaintiff might be legally barred from suing the missing party because the statute of limitations lawsuit-filing deadline has passed. Or, the state court in which the lawsuit was filed might not have jurisdiction over the missing party, under the circumstances.

The Missing Defendant Was Dismissed From the Lawsuit

The empty chair defense might also be used if missing the party had been a defendant in the case, but was dismissed from the lawsuit for procedural reasons.

But note that if the missing defendant was dismissed from the lawsuit because the judge ruled that there wasn't enough evidence to make a basic case against the defendant (for negligence, for example) then the remaining defendants can't typically use the empty chair defense.

How Is the "Empty Chair" Defense Used?

In the rare event that a personal injury lawsuit goes all the way to trial, the remaining defendants will point the finger at the missing defendant in every aspect of the case. The defense attorneys will start with their opening statements, arguing that the evidence shows that it's the missing defendant, not their client, who is liable for the plaintiff's injuries.

Then, they'll try to get the jury wondering why the missing defendant isn't there. Maybe they'll call a witness or two who can testify that the missing party actually played a big part in causing the plaintiff's injuries. If state law allows defendants to inform juries that the plaintiff settled with another party, they'll certainly let the jury know about the settlement, including the amount, if the rules allow that.

Will an Insurance Adjuster Use the "Empty Chair" Argument?

It's possible. Even if you've only filed an injury-related insurance claim, and you're trying to negotiate an injury settlement, the "empty chair" defense can still come up, at least informally. If there's any chance that someone other than the insured person was to blame for the incident that led to your injuries, you can expect the insurance adjuster to point the finger in that direction.

Getting the "Empty Chair" Defendant on the "Verdict Slip"

When the trial ends, 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, they'll also give the jury a verdict slip, which 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, if the judge puts the missing defendant on the verdict slip, the jury might 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 the plaintiff's verdict will be reduced by 40%.

Defense attorneys love it when the missing defendant is put on the jury verdict slip. Their hope is that it suggests to the jury that the judge thinks there's enough evidence that the missing defendant might be negligent, so it might sway the jury at least a little bit.

What's Next?

If your personal injury case is complex enough that multiple parties might be on the legal hook for harming you, or if you've settled with one party while your case against another is still going, chances are you've got a personal injury lawyer handling things on your behalf. Your lawyer should be able to anticipate if and how the "empty chair" defense might be used in your case, and will strategize accordingly. Learn more about how personal injury lawyers help their clients. If you're still looking for help from an experienced legal professional, get tips on finding the right injury lawyer for you and your case.