Empty chair defense refers to a tactical choice adopted by a defendant in a multipart case. Under empty chair defense, a defendant attempts to put the entire fault on a defendant who was not named as a party. Empty chair defense is not per se impermissible for a defendant to point to an empty chair or a non-party, and claim that party is responsible for plaintiffs' injuries. The empty chair defense is not in itself legally insufficient. Therefore, if a defendant's allegation consists of facts that are in dispute and which a jury ought to hear, then they should be allowed to plead it at trial.
The following is an example of a case law defining empty chair defense :
Evidence pointing the finger of blame at a non-party is commonly known as the empty chair defense. Griffin v. Montana Rail Link, 2000 ML 4155, 7 (Mont. Dist. Ct. 2000).