Note the Challenges of an Empty Chair

By Dr. Ken Broda Bahm

In the week since actor and director Clint Eastwood made a surprise appearance at the Republican National Convention, his speech has become infamous. The chosen rhetorical device of engaging in a dialogue with an imaginary Barack Obama, represented by an empty chair, has spawned countless internet memes and has even led to the coining of the verb “Eastwooding,” to mean the act of arguing with an empty chair.

Of course, in the courts, trial attorneys have been Eastwooding — blaming empty chairs — for many years. At least since tort reform changes in the last two decades have moved many states from joint and several liability toward standards that allow a nonparty at fault to absorb a proportion of responsibility, empty chairs have been taking at least as much criticism in court as Clint Eastwood leveled at the National Convention. These changes in law have, in many venues and litigation contexts, created a strong incentive for defendants to place responsibility on a party that isn’t represented in court but is present on the verdict form. The party might be missing due to workers’ compensation rules, other forms of immunity, or because they’ve settled before trial. But even as jurors might wonder at their absence, they still present an ideal opportunity for the remaining defendant(s) to reduce their own share of responsibility by pointing toward these phantom defendants. The challenge, however, is that the credible distribution of responsibility to include nonparties isn’t always as simple as it seems. So, inspired by the RNC’s recent Eastwood moment, this post shares some thoughts on the challenges and solutions surrounding empty chair defenses.

Depending on the side of the bar you are on, you might think of the empty chair defense as either an unfair opportunity for parties at fault to reduce their own responsibility by targeting those who won’t be offering a defense and won’t be paying damages, or as a rational tool that allows the share of blame placed on a party to match the realistic portion of responsibility that party holds, and not the simple availability that comes from being the only one sitting in a defendant’s chair. Obviously, there are persuasive and legal challenges that attach to both sides of the dilemma. But speaking to that second perspective, I’d like to identify three main challenges and associated solutions that apply to attempts to rationally, fairly, and successfully place responsibility on the empty chair.

1. Challenge: Jurors Feel It’s Not a Fair Fight Because They Never Heard from the Nonparty

We see it frequently at mock trials: After each presentation we provide questionnaires asking about the credibility of all parties, and after the first presentation mock jurors can be reluctant to evaluate another party because, “We haven’t heard from them yet.” It can feel like a violation of the juror’s basic sense of fairness to blame a silent party. Or worse, jurors can be motivated to speculate about what that party would have said if it had been represented in court. In the end, the empty chair might get the benefit of the doubt while blame is apportioned among those who are present.

Solution: Add Some Substance to the Straw Man

To the extent that it is possible to do so without engaging in speculation yourself, try to present the facts in such a way that jurors feel they know what the empty chair would say if it had a representative in court. For example, you might argue that “From this document, you can see what the state’s position is, but the problem with that is…” As long as you are providing a good answer, jurors will feel better in the knowledge that they’re not being asked to knock over a total strawman, but are instead giving fair consideration to the nonparty’s position. Jurors should be encouraged to see themselves as getting to the truth, like investigators, rather than judging the arguments of all of the sides, like debate evaluators.

2. Challenge: Jurors See Only Finger Pointing With Unclean Hands

When your view is that a nonparty should absorb all or most responsibility, it can feel like the right strategy to spend much more time attacking that nonparty than defending yourself. We typically encourage defendants, however, to look to their own credibility first, and attack later. While this applies to attacks against the plaintiff, it should also apply to attacks against empty chairs. When the finger pointing is too much or too soon, it sounds like an excuse rather than an argument. You can’t win simply by building a case against someone else, whether that someone else is a party or not.

Solution: Wash Your Hands, Then Point

What this means in practice is that you need to adopt your theme and structure so you are first emphasizing a positive case: What did you do right? How did you behave responsibly? How did you meet all of your obligations? Once you have established that, then you have the credibility that will allow a more reasoned argument on distributed responsibility. Just as voters want to know what they’re voting for, as well as against, your story in trial needs a similarly balanced approach. Though it may take patience, the handwashing should come first and the finger pointing should come last.

3. Challenge: Jurors Understand the Implications and Take Them into Account

When we are watching the deliberations during a mock trial, we will sometimes see one juror let the cat out of the bag to the other jurors. “You wanna know why the contractor isn’t in this lawsuit?” the juror will ask, before then explaining workers’ compensation immunity to the rest of the group. This doesn’t happen as often as you might expect, and the jurors’ explanations or speculations are often nowhere near accurate, but a little knowledge in this regard can be a dangerous thing by providing a pretty significant distraction to jurors as they’re trying to follow the instructions that allow them to include empty chairs in an allocation of fault. At worst, that knowledge can lead a jury to consciously omit or downplay responsibility for the nonparty in order to maximize recovery for the plaintiff.

Solution: Carefully Voir Dire on Their Knowledge or Perceived Knowledge of The Law

Asking in open court, of course, can end up educating the entire panel. The better course, if the judge allows it, is to ask in a supplemental juror questionnaire, or in individual voir dire at the bench. In the workers’ compensation context, it is a safe bet that many of those who hold occupations that bring them into contact with the workers’ compensation system will have at least some knowledge of the reasons a nonparty might be immune from suit. For others, it helps to ask, but not too directly. For example, the question, “Are you aware of laws allowing some entities or individuals to be immune from some lawsuits?” would serve the function of telling anyone who doesn’t already know. The better course is to ask in an open-ended fashion on the questionnaire: “What are your thoughts about a situation in which several individuals or entities are blamed for an event, but only some of those individuals or entities are represented in court?”

Personally, I’m hoping that the term “Eastwooding” catches on in a legal context, as in “Wow, did you see how much Eastwooding she was doing in opening statement?” But even if it doesn’t, defendants who point to an empty chair in trial can take an important lesson from the actor: What seems like a good idea at the time can always fail in the execution. Distributing responsibility intelligently requires giving some thought to what your audience will understand as fair and reasonable.

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Other Posts on Juror Perceptions of Responsibility:

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Costello, N.A. (1999). Allocating Fault to the Empty Chair: Tort Reform or Deform? University of Detroit Mercy Law Review, 76.

Entman, J.F. (1993). The Nonparty Tortfeasor. Memphis State University Law Review, 23.

Photo Credit: K.Broda Bahm

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Note the Challenges of an Empty Chair

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