Defenses and Affirmative Defenses
Liability Defenses
The empty chair defense asks the jury to allocate fault to an absent actor: a settled defendant, an immune employer, an unidentified driver, or a party the plaintiff chose not to sue.
Availability depends on state law permitting apportionment to nonparties, and most jurisdictions require notice identifying the nonparty within a defined period.
Alternative Names:
Nonparty Fault Defense, Absent Party Defense
Why it Matters?
This defense is often the difference between a manageable verdict and a full one, particularly where an employer is immune under workers' compensation or where a codefendant settled early. The procedural requirements are strict: most states require timely designation of the nonparty, and missing that deadline forfeits the argument regardless of the evidence. It should be evaluated at the answer stage rather than at the pretrial conference.
Frequently Confused with
Related terms
Frequently asked questions
Can fault be assigned to an immune employer?
Is advance notice required?
