• Menu
  • Skip to left header navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Before Header

(317) 639-4511

  • LinkedIn
  • Twitter

Harrison Moberly LLP

Law Firm in Indianapolis, IN

  • HOME
  • PRACTICE AREAS
    • Appellate Law
    • Bankruptcy & Debtor-Creditor Relations
    • Business Services
    • Construction Law
    • Employment Law
    • Environmental
    • Estate Planning, Wealth Transfer and Tax
    • Family Law
    • Insurance Services
    • Law Practice Succession Planning
    • Litigation Services
    • Mediation Roundtable LLC and Alternative Dispute Resolution
    • Real Estate
    • Tax Controversy and Dispute Resolution
  • ATTORNEYS
    • A-K
      • Thaddeus R. Ailes
      • Stephen E. Arthur
      • Ashley A. Butz
      • Raeanna Carrell
      • William “Jay” Hancock
      • Natalie Hatfield
      • Lee L. Heyde
      • Don Hopper
    • L – Z
      • Patricia Polis McCrory
      • James J. McGrath
      • Tamie Jo Morog
      • Rory O’Bryan
      • Chad E. Oswald
      • Mark W. Pfeiffer
      • Fred D. Scott
      • Martha T. Starkey
      • David J. Theising
  • NEWS, EVENTS, & BLOGS
  • BILL PAY
  • LOCATIONS
  • Attorneys
    • A – K
      • Lisa M. Adler
      • Thaddeus R. Ailes
      • Stephen E. Arthur
      • Ashley A. Butz
      • Raeanna Carrell
      • William “Jay” Hancock
      • Natalie Hatfield
      • Lee L. Heyde
      • Don Hopper
    • L – Z
      • Patricia Polis McCrory
      • James J. McGrath
      • Tamie Jo Morog
      • Rory O’Bryan
      • Chad E. Oswald
      • Mark W. Pfeiffer
      • Fred D. Scott
      • Martha T. Starkey
      • David J. Theising
  • Practice Areas
    • Appellate Law
    • Bankruptcy & Debtor-Creditor Relations
    • Business Services
    • Construction Law
    • Employment Law
    • Environmental
    • Estate Planning, Wealth Transfer and Tax
    • Family Law
    • Insurance Services
    • Law Practice Succession Planning
    • Litigation Services
    • Mediation Roundtable LLC and Alternative Dispute Resolution
    • Real Estate
    • Tax Controversy and Dispute Resolution
  • Bill Pay
  • Locations
  • (317) 639-4511

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

February 26, 2019 //  by Stephen Arthur

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.

           

You May Also Be Interested In:

Estate Planning Considerations for New Parents

David Theising to Speak at 2021 Annual Meeting of ABA Forum on Construction Law in New York City

Execute Documents Remotely

Parenting Time During Governor Holcomb’s Stay at Home Order

Estate Planning During Coronavirus & Social Distancing

Virtual Estate Services

Estate Administration During Coronavirus & Social Distancing

Harrison & Moberly proudly sponsors 2019 APABA-IN Central Regional Conference

Hopper Appointed as Member of the Probate Code Study Commission

Previous Post: « Arthur Publishes Article in 15 Indiana Civil Litigation Review 33 (2018)
Next Post: Hopper Appointed as Member of the Probate Code Study Commission »

Primary Sidebar

Twitter

26 Sep 1574502378233122816

HM is excited to announce that Lisa M. Adler and Ashley A. Butz, members of the firm’s estate planning practice, have been named members to the Estate Planning Council of Indianapolis.

Reply on Twitter 1574502378233122816Retweet on Twitter 1574502378233122816Like on Twitter 15745023782331228161Twitter 1574502378233122816
30 Aug 1564625082563137548

Harrison Moberly is proud to recognize and congratulate its 2023 Best Lawyers!

Twitter feed video.
Image for the Tweet beginning: Harrison Moberly is proud to
Reply on Twitter 1564625082563137548Retweet on Twitter 1564625082563137548Like on Twitter 15646250825631375481Twitter 1564625082563137548
25 Feb 2022 1497260344577867776

Harrison & Moberly, LLP is proud to recognize and congratulate its 2022 Super Lawyers and Rising Star!

https://t.co/dtMUm1Bzfk

Twitter feed video.
Image for the Tweet beginning: Harrison & Moberly, LLP is
Reply on Twitter 1497260344577867776Retweet on Twitter 1497260344577867776Like on Twitter 1497260344577867776Twitter 1497260344577867776
1 Jun 2021 1399791212056530945

Harrison & Moberly is pleased to officially return to the Downtown office today and celebrated the occasion with a Taco Tuesday lunch to catch up with each other in person!

Twitter feed video.
Image for the Tweet beginning: Harrison & Moberly is pleased
Reply on Twitter 1399791212056530945Retweet on Twitter 1399791212056530945Like on Twitter 13997912120565309451Twitter 1399791212056530945
18 Nov 2019 1196439093527416833

For the 3rd year, H&M Attorneys Mark Pfeiffer and Fred Scott attended the 2019 Tippecanoe County Veterans Stand Down event on November 2, 2019, to provide pro bono legal advice on issues that routinely impact Indiana veterans! We are so grateful for their dedication and service!

Twitter feed video.
Image for the Tweet beginning: For the 3rd year, H&M
Reply on Twitter 1196439093527416833Retweet on Twitter 1196439093527416833Like on Twitter 11964390935274168331Twitter 1196439093527416833
Load More...

Recent Posts

Estate Planning Considerations for New Parents

Starting a family involves preparation and thinking ahead. …

David Theising to Speak at 2021 Annual Meeting of ABA Forum on Construction Law in New York City

Harrison & Moberly attorney David Theising has been invited …

Execute Documents Remotely

We will soon be able to assist clients in executing their estate …

Parenting Time During Governor Holcomb’s Stay at Home Order

During the current World upheaval, parents are looking for …

Estate Planning During Coronavirus & Social Distancing

During this frightening time, we are all reminded of life’s …

Footer

INDIANAPOLIS
(317) 639-4511

8335 Keystone Crossing
Suite 220
Indianapolis, IN 46240

CARMEL
(317) 639-4511

760 S Rangeline Road
Suite 164
Carmel, IN 46032

LEBANON
(317) 639-4511

114 South Meridian St.
Suite A
Lebanon, IN 46052

Site Footer

The information contained on this website is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state.

Copyright © 2023 Harrison and Moberly LLP · All Rights Reserved ·