Right of Party in a Civil Action to be Present at Trial

posted by Stephen E. Arthur | February 26, 2019

            Absent waiver or extraordinary circumstances, a party litigant has the right to be present at trial. The Indiana Supreme Court has held this right is ancillary to a party’s right to trial by jury as guaranteed in Article I, Section 20 of the Indiana Constitution. In Jordan ex rel. Jordan v. Deery, the court explained: In our view, the right to be present in the courtroom during both the liability and damage phase of trial is so basic and fundamental that it is, by implication, guaranteed by Article I, Section 20.”” 778 N.E.2d 1264, 1272 (Ind. 2002); e.g., Ziegler v. Funkhouser, 85 N.E. 984, 986 (Ind. Ct. App. 1908) (“It is the right of every party litigant to be present in person in court upon the trial of his own case….”). Indiana cases make it clear that a party’s right to be present at all stages of trial exists both in jury and bench trials. See, e.g., In re Change of Name of Fetkavich, 855 N.E.2d 751 (Ind. Ct. App. 2006).


Waiver: A party may waive the right to be present at trial. Waiver must be knowing and voluntary. A trial court may presume waiver where a party has received proper notice of trial but fails to appear. In such circumstances, the absent party must demonstrate that waiver was not intended.


Extraordinary Circumstances: Jordan rejected a line of cases represented by Gage v. Bozarth, which had held a personal injury plaintiff may be excluded in a bifurcated trial where the plaintiff's “appearance or conduct is likely to prevent the jury from performing its duty” and the trial court determines the plaintiff cannot “assist counsel in any meaningful way.”” 505 N.E.2d 64, 67 (Ind. Ct. App. 1987). The Jordan court determined a plaintiff’s right to attend trial is so constitutionally paramount, this right must prevail over any prejudicial impact the plaintiff’s presence may have on the defendant. However, beyond the circumstances addressed in Gage, Jordan affirmed there may be other extraordinary circumstances in which the trial court may remove or exclude a litigant from trial. Jordan did not provide a bright-line rule to determine what is an extraordinary circumstance, opting to leave this question to the good judgment of the trial court on a “case-by-case basis.”Id. n.8.

Justice Boehm issued a strong and compelling dissent in Jordan, arguing the right to be present at trial derives not from Article I, Section 20, but from “the federal right to due process of law and the concept of fundamental fairness in judicial proceedings that is implicit, if not explicit, in [the Indiana] constitution.” Id. at 1273 (Boehm, J., dissenting). Justice Boehm stated because the right to be present at trial stems from procedural fairness, it “must be balanced against considerations of fairness to other parties,” which should include the factors approved in Gage, like the possible prejudicial effect on a defendant. Id. Justice Boehm was given a later opportunity to expand this position in Niksich v. Cotton, 810 N.E.2d 1003 (Ind. 2004). That action involved an prison inmate’s small claims action (no jury trial) against two state employees. Affirming the trial court’s refusal to transport the inmate to the courthouse or to conduct a trial at the prison, Justice Boehm, writing the majority opinion, and couching the decision in terms of Due Process of Law, stated a party “does not have an absolute right to be present as a matter of federal due process.” Rather, “under ‘extraordinary circumstances’ presence of a party may not be required. An incarcerated plaintiff may present such circumstances.” Id. at 1008. For example, a trial court may consider the availability of alternatives to a party’s actual presence such as submitting the case through documentary evidence, conducting the trial by telephonic conference, securing someone else to represent the party at trial, or postponing the trial until there is a release from incarceration. The court affirmed a trial court has wide discretion in selecting from these options as needed to balance a party’s interest in being present at trial against the interests of adverse parties, including judicial concerns of expense, security, logistics and docket control.

The upshot of the above-referenced cases is twofold. First, a party’s right to be present in a civil trial exists in both jury and bench trials, despite Jordan’s holding that the right to be present derives from the constitutional right to trial by jury protected by Article I, Section 20. Second, in deciding whether “extraordinary circumstances” exist, the trial court will be permitted to balance a party’s right to be present at trial against prejudice to opposing parties or disruption to court proceedings, including the existence of viable alternatives allowing an absent party the meaningful ability to participate in the case – essentially, as Justice Boehm advocated in the Jordan dissent, a Due Process determination.