What is an “Empty Chair” Defense?
Sometimes the most straightforward defense is also the best one. If your client is accused of breaching a contract, it's only natural to lead with something like “no we actually did everything right and the plaintiff breached the contract.” And if your client is accused of injuring someone, your first instinct may be to go on the attack. You may find yourself saying something like “my client didn't hurt anyone, and the plaintiff is a craven liar who faked the whole thing.”
In some cases, this will work. But in others you may take a look at your client and a look at the other side and worry that a strict swearing contest is unlikely to end well. This is obviously true if your client is an unlikeable weirdo. But the issue isn't just about who is more friendly and can become an issue even if your client is perfectly reasonable. A corporation is always going to be less personable than a genuinely injured human being. And this is often the case even if that corporation is full of great people who did nothing wrong.
But thankfully for defendants there is someone out there that's even less personable than even the least likable corporate defendant. And that's the guy who isn’t there to defend himself. So, if you're stuck on the wrong side of a popularity contest you should probably consider the “empty chair” defense.
What is the empty chair defense? The term is used, often derisively, whenever a defendant blames what happened to the plaintiff on someone who isn’t a party to the lawsuit. But there are several common variations.
1. The “Wrong Legal Entity” Argument
Many corporate organizations operate through multiple legal entities. At financial services companies it is not uncommon for an employee to perform work every day for a dozen different legal entities, none of whom are his or her technical employer. So, if something happens to that employee – say he or she is discriminated against or not paid the compensation that was promised – it's not uncommon for one or more defendants to claim that you've sued the wrong paper entity.
Usually this gets sorted out before trial, but not always. In fact, we had the pleasure of taking the same broken employment contract to trial twice after a company tried – unsuccessfully – to evade liability by pointing to an empty chair.
2. The “Not My Job Argument”
When someone is injured because of an unsafe condition on a commercial property the result is sometimes an avalanche of buck-passing. Everyone involved will disclaim responsibility for keeping the location safe. For example, if a customer trips over a box sticking out of a store display at a mall, he or she might be inclined to sue the mall. But the mall is likely to blame its tenant, the store, and claim that its lease requires the tenant to maintain safe conditions. And if the plaintiff sues the store, the store may point its finger at the distributor who stocked the shelves claiming that they were responsible for safely placing product.
3. The “You Saw The Wrong Doctor” Argument
When there's no way to dispute a plaintiff's injuries, some defendants will attack the plaintiff’s treating physician. The defendants usually argue that the injuries are the result of medical malpractice (or were worsened by that malpractice) and are not fairly attributable to whatever the defendant is accused of doing. This can be particularly effective when a plaintiff has a known quack or serial medical expert as a treating physician. It can also be raised when a plaintiff has had controversial treatments, such as spinal fusions, that may or may not be effective at treating their injuries. This argument has the effect of turning a beauty contest between the plaintiff and defendant into a beauty contest between the plaintiff’s shady physician and the defendant’s boy scout medical expert.
4. The “You Already Settled With The Bad Guy” Argument
In multi-defendant cases, often some parties will settle in advance of trial. Once this occurs, the remaining defendants have an enormous incentive to pin every shred of blame on the defendant who settled. This can be an extremely effective version of the empty chair argument since 1) many jurors view settling as evidence of guilt and 2) it's hard for the plaintiff to defend the settling defendant since the plaintiff already accused them of wrongdoing in their initial lawsuit. And if a jury gets word that a plaintiff has already received money, the jury may feel less pressure to ensure that the plaintiff gets something for his or her trouble.
Why are the various versions of the empty chair argument effective? Because they fundamentally change the nature of the dispute between the parties. In cases where damages are strong and the defendant appears to have done at least something wrong, an empty chair argument shifts the focus away from these strengths and toward the actions of a third party who cannot defend itself. The argument puts the plaintiff in the strategically awkward position of either defending the actions of a (potentially guilty) person who isn't there or ignoring the argument and risking that the jury chooses to blame the person outside the courtroom. And in some states jurors can even allocate liability to third parties on the jury form. Jurors may believe that this allocation represents Solomonic wisdom in a complex situation but in practice it just means that the plaintiff receives less or, in some cases, nothing at all.
How do you combat an empty chair argument? In some jurisdictions there are rules that can assist you. For example, in Florida a defendant is not permitted to tell the jury that a plaintiff settled with a different defendant and doing so can constitute grounds for a new trial. [1] In other states a defendant who wishes to blame others for plaintiff’s injury must provide notice of this defense and specifically identify the folks that it intends to blame. [2] This is so that the plaintiff can, if possible, add them to the case as defendants. Ohio law requires a defendant to introduce actual evidence of a non-party’s liability before they can argue the empty chair to a jury. [3] And Nevada, true to its reputation, requires a defendant to go “all in” on the empty chair. A defendant can avoid liability if a non-party is 100% responsible for a plaintiff's injuries. But a defendant gets no deduction for anything less than 100%. This means that if a defendant proves that somebody else was 95% responsible for what happened, that's no help at all. The defendant is still on the hook for 100% of the verdict. [4]
But in any jurisdiction the first step to defending against an empty chair is to spot it and, if possible, fill it. There are reasons to sue a subset of responsible parties depending on the case. Some lawsuits are more likely to succeed or more efficiently brought against one party rather than everyone under the sun. But when formulating a lawsuit or preparing one for trial it is important to consider whom the defendant will blame for whatever went wrong. Usually that's just the plaintiff. But when it isn't, it pays to think hard about whether the scapegoat should be given its own full seat at the trial.
[1] Saleeby v Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009).
[2] See, e.g., Walters v. Dean, 497 N.E. 2d 247 (Ind. App. 1986).
[3] Fairrow v. OhioHealth Corp., 2020-Ohio-5595, ¶ 49, 2020 WL 7233145 (Ohio App. Dec. 8, 2020).
[4] See N.R.S. § 41.141(1).
