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Final Copy 291 Ga. 380 S11G0590. KESTERSON et al. v. JARRETT et al. NAHMIAS, Justice. Under the longstanding law of Georgia, the parties to a lawsuit have a fundamental right to be present in court during the trial of their case. The issue presented in this appeal is whether a party may be denied that right and excluded from the courtroom because her physical and mental condition may evoke undue sympathy from the jury and thereby improperly prejudice the other party. This appears to be a question of first impression for Georgia's appellate courts, likely because exclusion of a party from trial for this reason is such an exceptional event in this State. In this case, however, the trial court excluded Appellant Kyla Kesterson, a young child with severe cerebral palsy, from most of the liability phase of the trial of her and her parents' lawsuit alleging that her condition was caused by Appellees' medical malpractice. The Court of Appeals affirmed that ruling, adopting a test used by the United States Court of Appeals for the Sixth Circuit, which gives the trial court discretion to exclude a civil party when the party's physical and mental condition may generate jury sympathy and her mental condition precludes her

from meaningfully participating in and understanding the proceedings. See Kesterson v. Jarrett, 307 Ga. App. 244, 250 (704 SE2d 878) (2010) (citing Helminski v. Ayerst Labs., 766 F2d 208, 218 (6th Cir. 1985)). We conclude, however, that a party may not be excluded from her own trial simply because her physical and mental condition may evoke sympathy, even under these circumstances. Instead, trial courts can and should address the risk of undue sympathy using jury instructions and other common and time-tested means of ensuring that both parties receive a fair trial, without infringing on the parties' right to be present. Accordingly, we reverse. 1. The Court of Appeals accurately described Kyla's condition and

the issues raised by the parties: Kyla was born with very low "Apgar scores," a gross assessment of the infant's medical condition at specific intervals after birth. Within a day of her delivery, Kyla had a brain ultrasound and CT scan, neither of which revealed any injury. A week later, an MRI of Kyla's brain revealed damage to parts of the brain that control motor function. Kyla was eventually diagnosed with spastic quadriplegia, a form of cerebral palsy. As a result of this condition, Kyla is unable to control her movements and is confined to a special wheelchair, she has a feeding tube inserted into her stomach, her airway must be suctioned several times a day, she has bladder and bowel dysfunction, she suffers frequent seizures, she has severely limited cognitive function, and she cannot speak.

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The Kestersons contended at trial that Kyla's neurological injuries occurred when she was deprived of oxygen just prior to birth. They argued that [Appellees Walter Jarrett, M.D., Athens Obstetrics and Gynecology, P.C., and St. Mary's Healthcare System, Inc. d/b/a St. Mary's Hospital] were negligent in failing to timely recognize the signs of fetal distress and that if Jarrett had performed a Caesarean section earlier, Kyla would not have been injured. The defendants argued that their actions did not fall below the standard of care, that an earlier Caesarian section was not medically indicated, and that Kyla's cerebral palsy may have resulted from something other than an event that occurred during delivery. Kesterson, 307 Ga. App. at 245. After the trial court ordered the bifurcation of the liability and damages issues, Appellees moved to exclude Kyla from the courtroom during the liability phase of the trial, arguing that her presence would be prejudicial to Appellees, she could not meaningfully participate in the trial, and her parents could adequately represent her interests. Appellees did not contend that Kyla should be excluded from the damages phase of the trial. Appellants responded that they did not intend for Kyla to be in the courtroom for any lengthy period, but that she had a constitutional right to be present in court. The trial court's written order on Appellees' motion stated that Kyla would be allowed

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in the courtroom at the time of the call of the case for trial immediately prior to voir dire of the jury panel. After introduction of [Kyla] to the jury panel, the child's presence during the liability phase of the trial shall not be allowed until the Court, outside of the jury's presence, determines that the presence of such child is essential and relevant to witness testimony related to medical conditions affecting said child which resulted from alleged negligent acts by one or more Defendants. The Court shall allow the presence of [Kyla] in the courtroom during the damages phase of the trial, if reached, during those periods of time that her presence is needed with respect to the issue of Plaintiffs' claim for damages. However, the Court reserves the right to remove [Kyla] from the courtroom at any time the Court perceives that her actions are distracting or disruptive to the proceedings or otherwise result in potential prejudice to one or more of the Defendants. During the liability trial, the trial court twice denied the Kestersons' request to bring Kyla into the courtroom but granted one such request. See Kesterson, 307 Ga. App. at 247. In denying one request, the trial court said that it was doing so "out of a concern that [Kyla's] presence . . . may have an undue prejudicial impact on the jury as to the liability issue" and because she could not meaningfully participate in and comprehend the proceedings. On the one occasion that Kyla was allowed to appear, during the cross-examination of a defense medical expert, she was in the courtroom for testimony that covers just over one page of the over 4,600-page transcript. The jury returned a verdict in favor of Appellees on liability. 4

On appeal, the Kestersons contended that the trial court erred in limiting Kyla's presence in the courtroom. Finding no Georgia case directly addressing the issue, the Court of Appeals adopted the test set forth by the Sixth Circuit in Helminski,766 F2d at 218, with some procedural additions. See Kesterson, 307 Ga. App. at 248-250. The Court of Appeals held that a trial court has the discretion to limit a severely injured plaintiff's presence during the liability phase of a bifurcated trial when, after an evidentiary hearing upon a written motion and after an opportunity to observe the plaintiff, the court makes the following factual findings in a written order: (1) the plaintiff is severely injured; (2) the plaintiff attributes those injuries to the conduct of the defendant(s); (3) there is a substantial likelihood that the plaintiff's presence in the courtroom will cause the jury to be biased toward the plaintiff based on sympathy rather than the evidence such that the jury would be prevented or substantially impaired from performing its duty; (4) the plaintiff is unable to communicate with counsel or to participate in the trial in any meaningful way; and (5) the plaintiff is unable to comprehend the proceedings. When all of those circumstances exist, the plaintiff's presence is not truly an exercise of his or her right to be present, because the plaintiff is incapable of making such a conscious choice. As in this case, the plaintiff functions almost as an exhibit, as a piece of evidence. Kesterson, 307 Ga. App. at 250. The Court of Appeals concluded that the trial court had made all but the third finding of this test, noting that "[i]t did not make an explicit finding in its order or elsewhere on the record that there is a substantial likelihood that Kyla's 5

presence in the courtroom would cause the jury to be biased toward her based on sympathy rather than the evidence." Id. at 250. However, the Court of Appeals deemed this error harmless and affirmed the trial court's judgment. See id. at 251. We granted Appellants' petition for certiorari. 2. (a) The right of a natural party to be present in the courtroom

when her case is being tried is deeply rooted in the law of this nation and, if anything, even more embedded in the law of this State.1 It has been treated as a component of the due process of law in both criminal and civil cases since the early decisions of this Court. See Wade v. State, 12 Ga. 25, 29 (1852) (holding that a criminal defendant has "the right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court"); Tift v. Jones, 52 Ga. 538, 542 (1874) (explaining that a civil litigant has a "right to be

We note that the cases discussed in our opinion have all involved parties who are natural persons. Our decision therefore does not address the rights of corporate, governmental, and other such entities. See Eckles v. Atlanta Tech. Group, 267 Ga. 801, 805-806 (485 SE2d 22) (1997) (holding that a corporation must be represented in a court of record by licensed counsel). Likewise, our opinion today deals with the exclusion of a party from proceedings with the jury at trial, which is at the core of the right to be present. Where parties are represented by counsel, they have not traditionally had a right to be present, for example, during pre-trial, trial, and post-trial proceedings involving only legal arguments. See, e.g., Parks v. State, 275 Ga. 320, 325 (565 SE2d 447) (2002) (bench conferences on legal issues); Huff v. State, 274 Ga. 110, 111-112 (549 SE2d 370) (2001) (jury charge conference and discussions in chambers discussing legal matters).

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present in the court during the whole trial of his case"). See also Hampton v. State, 282 Ga. 490, 492 (651 SE2d 698) (2007) (holding that a criminal defendant has a fundamental right to be present in court under the due process clause of the Georgia Constitution); Helminski, 766 F2d at 213 (holding that, as a matter of federal constitutional law, the right to be present is appropriately analyzed as an aspect of due process in civil cases). The right to be present is also reflected textually in our State Constitution, in the provision guaranteeing to every person "the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state." Ga. Const. of 1983, Art. I, Sec. I, Par. XII. See Smith v. Baptiste, 287 Ga. 23, 24-27 (694 SE2d 83) (2010) (reaffirming that Paragraph XII establishes a right to choose self-representation). A similar provision was included in our first Constitution, see Ga. Const. of 1777, Art. 58, and it has been included in every Constitution since 1877. See Smith v. Baptiste, 287 Ga. at 33-35 (Nahmias, J., concurring specially) (tracing the constitutional history of this provision); Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 413

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(321 SE2d 330) (1984) (same).2 The right of parties to be present in court when their causes are heard is undoubtedly strong as a matter of federal law. See Hampton, 282 Ga. at 491492 ("The United States Supreme Court has long recognized that a criminal defendant's right to be present at all critical stages of the proceedings against him is a fundamental right and a foundational aspect of due process of law."); Helminski, 766 F2d at 213-217 (canvassing federal cases and holding that a civil litigant has a due process right to be present during trial, although not an absolute right). But the even greater respect given this right in our State's legal tradition is reflected in the fact that the textual right to prosecute or defend one's case in court applies to civil as well as criminal cases. See Smith v. Baptiste, 287 Ga. at 34 (Nahmias, J., concurring specially) (discussing the express recognition in early state constitutions, including the 1777 Georgia Constitution, of a right to choose self-representation in both criminal and civil cases, long before the U.S. Supreme Court recognized it as an aspect of federal due process
The 1983 Constitution revised the prior version of Paragraph XII slightly to clarify that a person is not entitled to "hybrid" representation, with the party actively participating in trial as cocounsel with a lawyer, which can lead to confusion. See Nelms, 253 Ga. at 413 & n. 7. But this change did not alter the fundamental right of parties to appear in court if they so choose. See Ward v. State, 288 Ga. 641, 645 (706 SE2d 430) (2011) (citing Paragraph XII as embodying the right of a criminal defendant to be present at trial).
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in criminal cases and even though the right to self-representation is protected in federal civil cases only by statute). Moreover, unlike federal law, under Georgia law the right to be present for all critical stages of criminal proceedings has been deemed so fundamental that a violation properly raised on direct appeal from a conviction is presumed to be prejudicial, requiring a new trial. See Ward, 288 Ga. at 646-647. Compare Rushen v. Spain, 464 U. S. 114, 117-118 (104 SC 453, 78 LE2d 267) (1983) (holding that the denial of a criminal defendant's right to be present is subject to harmless error analysis under federal law). (b) Like most other rights, the right to be present may be waived or

forfeited by a party. A party may choose not to attend all or part of her trial, see Hill v. State, 290 Ga. 493, 494 (722 SE2d 708) (2012), or affirmatively waive presence during all or part of a proceeding, see Ward, 288 Ga. at 646. But because the right to be present in court is held by the party, the decision not to attend, or to waive attendance, must be made by the party, not by her lawyer alone. "The right [to be present] is waived if the defendant personally waives it in court; if counsel waives it at the defendant's express direction; if counsel waives it in open court while the defendant is present; or if counsel waives it and the defendant subsequently acquiesces in the waiver." 9

Id. (citation omitted). Going back to our 1874 decision in Tift v. Jones, we have also upheld the discretion of trial courts to reconcile the right to be present in court with the venerable rule of sequestration of witnesses by requiring a party who plans to testify in a civil case to choose between testifying first or leaving the courtroom until the time that she testifies. See 52 Ga. at 542. Accord Barber v. Barber, 257 Ga. 488, 488 (360 SE2d 574) (1987). But we have also held that a trial court cannot simply sequester a party from a civil proceeding, without according the party that option. See Ga. R. Co. v. Tice, 124 Ga. 459, 464-465 (52 SE 916) (1905); St. Paul Fire & Marine Ins. Co. v. Brunswick Grocery Co., 113 Ga. 786, 789 (39 SE 483) (1901).3 A party may also forfeit the right to be in court by disrupting "`the decorum and respect inherent in the concept of courts and judicial proceedings,'" although trial courts must use care in excluding a party for this
The new Georgia Evidence Code provides that the rule of sequestration "shall not authorize exclusion of . . . [a] party who is a natural person." OCGA

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