As a Missouri auto accident attorney, I was pleased to see a ruling from our state’s highest court that granted a new trial to a defendant who did not get a chance to attend her first one. In Bair v. Faust, Shannon Bair sued William Faust over injuries she sustained in a car wreck. She or her attorney originally planned for her not to attend trial, but later announced that she could attend if given more time. The trial court declined to authorize more time, then permitted the defense to argue that the jury could infer from her absence that she was not attending because she would hurt her own case. The jury ultimately returned a verdict finding her 85 percent at fault for her own injuries, reducing her recovery to $9,000. The Missouri Supreme Court agreed with Bair that this created a manifest injustice and reversed denial of her motion for a new trial.
According to the opinion, Bair originally planned to avoid the trial for emotional reasons. Her attorney explained that she didn’t want to be in the same room with Faust because of their personal history; she alleged that Faust had said she was “hot” in a local newspaper, attempted to run her off the road, and had sent a private investigator to videotape her wedding in Mexico. During this stage of the discussion, Faust’s attorney made at least three requests that Bair be barred from the courtroom, then asked whether he would be permitted to argue adverse inference to the jury. The court said Bair would be allowed to attend if she could get to the courtroom in the next 10 minutes. Bair’s attorney contacted her and discovered that she was at least 35 minutes away. The court refused to extend this deadline, then permitted the adverse inference argument. Faust’s attorney made extensive use of the permission to argue adverse inference. The court denied motions for a new trial both before and after the trial, and the jury returned a $60,000 verdict reduced to $9,000.
The Missouri Supreme Court ultimately agreed that Bair should have a new trial, even though the trial court was “understandably” frustrated. The trial court appeared to believe Bair would be absent as a tactical maneuver; it was not clear that she would be absent until just before opening statements. The trial court barred Bair from the courtroom to keep her from making “a grand entrance” while it was already underway. But even if excluding Bair from the courtroom was appropriate, the Missouri Supreme Court said (without deciding that issue), it was an abuse of discretion to do that and also permit the defense to argue adverse inference. (Indeed, the trial court agreed that this was error, although it apparently disagreed that it had done so.) Multiple prior cases establish that adverse inference is not available when the absence is solely due to an opponent’s motion to exclude, the court noted. It reversed and remanded the case.
As a St. Louis motor vehicle accident lawyer, I’m glad this plaintiff will have a second chance to make her case. As the high court noted, Bair was barred from the courtroom by court order, which makes it hard to justify also permitting an adverse inference argument. Though a dissent in this case characterizes her attorney as attempting to manipulate the system, I suspect Bair may have been acting more out of strong feelings than tactics, and genuinely not realized there would be such dire consequences. An unfortunate truth of litigation is that it can require plaintiffs to relive upsetting experiences. I often have to explain what to expect in my role as a southern Illinois car accident attorney. But because it can be vital to the case, most plaintiffs find the strength to attend and testify.
Carey, Danis & Lowe represents clients across Missouri and southern Illinois who have suffered serious injuries because of someone else’s carelessness. If you’d like to speak to us about your rights and your legal options, call us today at 1-877=678-3400 or send us an email.
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