How “Empty Chair” Defense Tactics Work in Illinois Injury Trials

You know you’re walking into a personal injury trial when the defendant claims they weren’t negligent. But plaintiffs are often surprised by what defense attorneys do instead of taking responsibility: blame someone who isn’t there to defend themselves. It’s called the empty chair defense and here’s why you should know about it, if your personal injury attorney has more than one potential defendant in your case.
What’s the Legal Theory Behind an Empty Chair Defense?
Known in legal circles as the sole proximate cause defense, the empty chair defense is a defendant’s claim that someone who was not named in the lawsuit was actually solely responsible for your injury or accident. Defendants can introduce this defense whether the other person or entity they blame was never sued, reached an early settlement, or was dismissed from the case by the plaintiff’s lawyer before trial.
So long as there is some factual basis for blaming a third party, the Illinois Supreme Court upheld the empty chair defense in Leonardi v. Loyola University, allowing defendants to argue that someone else’s negligence was the sole proximate cause of a plaintiff’s injuries.
How Does the Empty Chair Defense Actually Work in Real Life?
While the name of the defense is clever, it has serious implications for plaintiffs: without any way to question the third party defendant yourself or hear their side of the story, the defense can make you look like the bad guy in your own lawsuit. Consider a car accident case where more than one driver failed to exercise reasonable care.
If you reach a settlement with one driver early on and later proceed against the second driver at trial, that defendant’s attorney will likely point out that it was really the driver who settled who was at fault.
The jury will hear only the second driver’s attorney discuss what the first driver did wrong. They won’t hear from that driver at all and will have no way to fact-check the attorney’s claims about why they settled. This raises the specter that jurors will blame the “empty chair” and reduce or even eliminate their liability from your award.
Why Do Plaintiffs Get Ambushed by This Defense?
Its biggest weapon against plaintiffs is that defendants don’t always have to give advance notice of this defense. If it’s argued as sole proximate cause, instead of relying on some new affirmative defense, defendants can spring it on plaintiffs at trial without warning. If plaintiffs’ lawyers settle with one party too quickly, they might find themselves outmaneuvered by the defense attorney.
When Should Plaintiffs Really Be Concerned About This Defense?
The possibility of an empty chair defense against you affects how your attorney approaches settlements. If you agree to a settlement with one defendant early on, you could be weakening your own case against the others. For this reason, some personal injury attorneys will not allow their clients to settle with any defendant until very late in the game, sometimes not until trial is impending. Others will word settlement agreements in a way which makes this defense less effective.
How Can Plaintiffs Beat the Empty Chair Defense?
Successfully attacking the empty chair defense takes strong evidence that the defendant you’re still suing was responsible for your injuries. This evidence must be sufficient to stand on its own. It shouldn’t just consist of arguing that both parties were somewhat to blame.
In some cases, this might include using accident reconstruction to show how the remaining defendant caused your injuries or detailed, clear documentation that proves exactly what the defendant you’re suing did wrong. Juror-facing evidence like this that stands alone can be very effective in preventing the empty chair from shifting fault away from the defendant you’re suing.
Should I Ask My Personal Injury Attorney About the Empty Chair Defense?
When your case names multiple defendants, it’s far more complex than your average personal injury case. That’s why you should ask your personal injury attorney in Keene about how they’ll prevent the empty chair defense as soon as possible. If they have a plan to prevent this issue from harming your case, they should be willing to explain it to you.