The Empty Chair
Time and time again, it comes up in focus groups – why aren’t they suing the doctor as well as the hospital? Why are they just suing the company but not the driver? These comments are most often followed by some version of “they’re going after the deep pockets. They’re after the big money.” These are not good comments for you – it means that jurors are seeing you as the greedy, manipulative trial lawyer who goes after any entity that has money to pay regardless of who is at fault. Jurors often want to blame the party that belongs in the empty chair.
In some cases, this is unavoidable. If you have settled with one party and not the other, there is no way to bring the settled party into court just to fill the empty seat. There are, however, some circumstances in which you can and should name an additional party to avoid having an empty chair. For example, if you think the defense is going to name a non-party that will then be on the verdict form, address that party head-on. Add them to the lawsuit. If jurors are going to hear about them and be able to allocate fault to them regardless, better to have it come from you so that they see you as asking for relief from all parties who are responsible rather than simply the ones who can pay. Once you have added them to the lawsuit, you can strategize on how to keep as much liability as possible on the larger entity. Test various themes and arguments in focus groups to find out how to keep the responsibility where you need it. Sometimes admitting that another party is at fault for certain acts gains you the trust you need with jurors to then argue to reduce that liability percentage.
For example, you may be able to argue that the doctor is responsible. He did x, y, and z wrong. However, the largest harm in this case was caused by the system failures of the hospital – the choices hospital administrators made to violate patient safety rules. If it were not for those choices, the plaintiff would not be in nearly as bad a condition and because of that, we think the hospital is 90% responsible for the harm.
This type of argument can shift blame where you need it once you acknowledge the other parties at fault. If you fail to mention those other parties or you let the defense mention them and put them on the verdict form as non-parties, jurors will be tempted to place even more blame on those non-parties because no one guided them as to how to deal with attribution of liability in this case.