In the early stages of a lawsuit, it is often unclear which of two different defendants is responsible for an aviation accident. But as the case progresses, evidence may point to one defendant over another. When that happens, it may seem like a good idea for the victim to settle with (or dismiss from the lawsuit) the defendant whose liability appears tenuous, and to proceed to trial against the defendant who appears blameworthy. Experienced aviation lawyers think carefully, however, before following that course, for fear of creating an "empty chair" in the courtroom.
Let’s say that, at the outset of the case, it is unclear whether the aircraft crash was caused by the defective design of a part (for which the aircraft manufacturer would be responsible), or negligent maintenance (for which the aviation mechanic would be responsible). But let’s say that, as the suit progresses, evidence is uncovered indicating that the responsibility should rightfully lie with the manufacturer. It may seem like good sense to dismiss the mechanic from the lawsuit and proceed to trial against only the manufacturer. Doing so, however, may allow the manufacturer to argue to the jury that the one truly responsible for the accident is someone who is not present in the courtroom — someone who should be seated in the "empty chair," but whom the victim decided not to bring into court.
This strategy is called "blaming the empty chair." Of course, the "empty chair" cannot defend itself. Thus, if allowed to employ this tactic, the wrongdoer can sometimes escape liability altogether.