Pointing Fault at a Missing Party: Five Ways to Fill an Empty Chair

Holland & Hart - Persuasion Strategies

Holland & Hart - Persuasion Strategies

Maybe a named party to a case settled out before trial, maybe they’re immune from suit, or maybe they were handled during a different part of the process — but all the jurors know is that a missing party might be partially at fault, and they aren’t there in the courtroom. So what do they do with a missing party that isn’t represented or present in the courtroom? While it may or may not be proper and facilitated by the verdict form for the jury to factor in the missing party’s degree of fault, it remains a high possibility that anyone who is a player in the story will play at last some part in the jury’s thinking.

How much a role the missing party will play is a factor that, in my experience, depends heavily on the ways the messages are delivered in trial. If, for example, no one devotes much time or attention to that party, it is normal for a jury to do the same. They may also feel that it isn’t fair to fault the missing party if that person or organization didn’t get “the chance” to defend themselves in court. Or, they might treat that party as a background condition rather than as an actor. For example, a potentially negligent driver who is missing from an automotive case might be treated as just part of the setting — like the terrain or the weather — rather than as a decision-making agent who should absorb fault. The legal status of directing blame toward the absent party will be complex, and depend on your situation and your judge. The rhetorical elements can be equally important. In this post I will share five ways to increase the effective “presence” of the missing party when you are able to do so.

Look for Opportunities to Mention 

To jurors, cases are about what you spend most of your time talking about. So the proportion of your emphasis matters. Think about how often you make a statement about yourself or another in-court party relative to how often you make a statement about the missing party: Is it 100 to 1? 20 to 1?  You will likely never be able to make it one-to-one, but the closer you can bring it to parity, the better. In voir dire, opening, witness examination, and closing, think of ways to remind jurors of the missing party’s presence. That reminder need not always have a probative point: it may be just a way to remind jurors of the missing party’s presence and importance in the story.

Incorporate Them in Your Theme

In planning out your message, you’ve likely distilled the case to a nutshell. The chances are that this theme emphasizes your defense, along with some weaknesses of the plaintiff’s case. But it can help to build your missing party into the theme to provide a reminder of that missing party’s role. For example, if your theme is about choices, then you might contrast your client’s choices with the missing party’s choices: This case is about the choice of one business to allow an unreasonable danger, and it is about the choice of another business, my client, to do what was possible to minimize that danger.

Build Them into Your Graphics 

For many jurors, seeing is believing, and your courtroom graphics can be a great tool for reminding jurors what is on the table and what matters. So it helps to consider any absent party you want jurors to consider when designing your demonstrative exhibits. For example, in an automotive case, you might consider a graphic showing the “driver’s eye view” of the missing motorist, showing what they saw as they approached the intersection. Or you might use a flowchart showing the choices made and the steps taken by the other party.

Centralize The Missing Party in Your Story 

Classically, stories have a protagonist and an antagonist, and it is natural to fill those roles with the parties who are available and present in the courtroom. At times, for example, it makes sense to give a central emphasis to the missing party, making them a main antagonist. You can’t always build this emphasis during the presentation of evidence, but you can make the most of your ability to tell a story in opening statement by giving an important role to the missing party.

Put The Missing Party First 

The “primacy effect” reflects our tendency to remember what comes first in a sequence. So it helps to give early emphasis to the role of the missing person or organization. As a defendant, you won’t have the option of giving your opening statement first, but you can get jurors thinking and talking about the missing party’s role in voir dire. And when you do get the chance at opening, you might start the story with the actions of the missing party. For example, if your client is an ER doctor who knew the patient only at the end of the story, then consider beginning the story with the family physician who frequently met with the patient at the outset.

Naturally, you won’t always be able to control the amount and type of attention you can give to the empty chair. Depending on the case, the judge might shut down these efforts. But the principle is to control what you can. If you are able to talk about the missing person or organization and to put them into the jury’s sphere of attention, language, theme, and story, focus on the most strategic ways to do so.


Image credit: 123rf.com, used under license

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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