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Continued... Page 5 > Filling the Empty Chair

The dynamic in trial was striking. Counsel for the witness sat at plaintiff's counsel's table. The Court permitted four jury strikes per side. On the defense side they were split two to each defendant. On all liability arguments and witness examinations, counsel for the bystander presented evidence and argument favorable to the plaintiff. In the end, the jury was angry at Bernard for having blamed an innocent bystander.

ALWAYS Bring Your Own Affirmative Summary Judgment Motion

In cases where the target defendant wakes up and realizes that making a bogus argument of fault on the part of an otherwise innocent party is a poor idea, do not rely on a stipulation or a summary judgment motion brought by the innocent party to resolve the issue of third party fault. It is essential to bring your own summary judgment motion on the affirmative defense. In three cases this summer, I have had defendants argue that a summary judgment order dismissing a party did not resolve the question of whether or not that party was at fault for the purposes of RCW 4.22.070(1). In one case, the target defendant brought a summary judgment motion to have the third party that it was blaming dismissed from the case to permit it to try the case against an empty chair. In another case, I brought a summary judgment motion on the affirmative defense, only to have it opposed on the ground that the other defendants are not bound by the plaintiff's incompetent pleadings! A form of motion is attached.

In summary, frivolous or stunningly weak claims of fault on the part of empty chair entities should be dealt with early and not only by discovery. A prompt affirmative summary judgment motion to dismiss affirmative defenses will smoke out whether or not there is enough evidence to raise a genuine issue of material fact. If the target defendant presents enough evidence to withstand a summary judgment motion, the defendant is doing the blaming, not the plaintiff. The entity must be joined, but ìname them but don't blame themî to make them a friend.