The Empty Chair Defense for Personal Injury Cases

The empty chair defense is used in personal injury cases where more than one party may be responsible for a plaintiff's injuries but not all are named in the suit. It is basically a maneuver where the named defendant seeks to divert responsibility to the non-party or "point to an empty chair." If this defense is not addressed by the plaintiff's attorney, it leaves the question open for the jury to decide the apportionment of fault.

In a comparative fault state, the defendant's apportion of fault may be reduced and if no other party is named, the plaintiff's award subsequently will be reduced. In the worse case scenario, the defendant may escape liability altogether, leaving the plaintiff with no award at all.

The Empty Chair Defense Scenario

Most civil attorneys know that in the case where there may be more than one party liable, the empty chair defense may be raised if all parties are not named. For example, in a medical malpractice where a plaintiff has been injured by the gross negligence of a specialist, the plaintiff's attorney must decide whether to name any other physicians, such as an internist or general practitioner, who may have remotely contributed to the injury, even if the apportionment of fault is minor.

At the initial stage of a lawsuit, evidence may point to only one defendant. However, as the plaintiff's attorney delves into the case, turning up more information, evidence may begin to point to other parties. At this point, it is incumbent on the plaintiff's attorney to "fill" any empty chairs that may be marginally related to the case and name any possible defendant in the original complaint.

However, sometimes the plaintiff is unaware of other defendants. However, the named defendant may then name those unknown parties as co-defendants. This actually benefits the plaintiff's side as now the defendant has "filled" any empty chairs and fault can be rightly apportioned by the jury without leaving a lot of guesswork.

Handling the Empty Chair Defense in Court

The best way for a plaintiff's attorney to avoid the fallout from an empty chair defense being raised in court is to not ignore the empty chair. The attorney should take the preemptive measure of addressing that "chair" in opening statements. If the attorney allows the "chair" defense to go unchallenged, the jury may be led to believe that the unnamed defendant is liable to some degree. The jury will then decide to what degree which may diminish the named defendant(s) apportionment of fault and consequently diminish the plaintiff's award. The attorney should also press the point that trying to blame another is actually refusing to accept responsibility. Juries understand this logic and this actually makes an empty chair defense go against the defendant.

Talk to an Attorney

If you are considering bringing a personal injury case and are not certain about all of the possible defendants involved, this is the time to discuss your case with a seasoned attorney. An experienced attorney is in a better position to investigate the circumstances surrounding your case and determine who may or may not be at fault so that your complaint will name all viable defendants. Additionally, an experienced attorney will know how to get around the empty chair defense and prevent your damages from being reduced or totally denied.