A recent trial court decision, Hernandez v. Chekenian, dealt with a minor, but significant, twist on a common scenario involving the so-called empty chair defense. This defense does not literally involve an empty chair. Rather it refers to the situation when defense counsel argues to a jury that someone else, someone not sitting at the defense table, is to blame for plaintiff's injuries. That party is usually, but not always, missing because they settled with the plaintiff.

The New Jersey model jury charges contain two settling co-defendant instructions. One is very short, and simply notifies the jury that a defendant settled and that "[t]he effect of that settlement on the parties still [t]here is of no concern to you at the present time and you should not speculate about that." The second is more detailed. It similarly notes that the jury should not "speculate as to the reasons why the plaintiff and defendant settled their dispute" and "should not be concerned about the amount, if any, that may have been paid to resolve the claim," but then instructs the jury to consider "whether or not the settling defendant was negligent and a proximate cause of the accident," and, if it does, to then "apportion fault in terms of percentages among/between the settling defendant(s) and the remaining defendant(s)."

Hernandez involved a three-car, chain reaction crash. Plaintiff was the passenger in the middle car. He sued the driver and owner of the first car, the driver and owner of the middle car (in which plaintiff was a passenger), and the driver of the third car. Prior to trial, plaintiff dismissed the claims against the driver and owner of the first car and the claims against the owner of the second car. He then settled the claims against the driver of the middle car. That left only the claims against the driver of the third car for trial. Counsel for the one remaining defendant requested that the court give the jury a settling co-defendant charge.

The trial court refused. The jury then heard opening statements from both sides and testimony from the plaintiff before lunch, but was discharged when the case settled immediately after lunch. The trial court explained its decision to not give the settling defendant instruction as follows:

This court views the settling co-defendant charge(s) to be "necessary evils," to be utilized only in certain limited circumstances, namely, when a defendant started out in a trial in the presence of the jury and then suddenly was gone. In such an instance, the jury is certainly entitled to some explanation of what happened with that defendant. This logic does not follow, however, when a jury never sees a particular defendant. In other words, there is no legitimate reason that a jury needs to be told that there was another defendant(s) who settled their dispute(s) by paying an amount of money.

The trial court observed that the settlement was both irrelevant to the jury's deliberation and prejudicial to the plaintiff, therefore it should not be given unless there was a sufficient countervailing interest -- explaining to the jury why a defendant who had been participating at the trial was suddenly gone. "Short of that particular state of affairs it simply makes no sense for a court to tell a jury that there were other defendants in the case but they settled before the trial began."

Finally, the court suggested that "the words 'settled,' 'settling,' 'settlement,' 'amount,' and/or 'paid'" should not be used when "explaining the absence of a defendant who was present for part of a trial and then ceased participating because of a settlement." Instead, the court suggested that it might be "more prudent" to just tell juries that a defendant was "no longer part of this case and that they [ ] should not be concerned with nor speculate about the reasons that is so."