Substitute Service and An Empty Chair

The Colorado Bar Association Ethics Committee recently released Formal Ethics Opinion 128 addressing the ethical duties of a lawyer who cannot contact her client.  The opinion recognizes that the “missing client” problem, which was already prevalent in the insurance defense context, has become even more common since the enactment of C.R.S. § 42-7-414.  That statute requires an individual who purchases a motor vehicle liability policy to designate his insurance carrier as his agent for service of process if the individual cannot be located through reasonable efforts.  It allows suit to move forward even where personal service on the individual defendant was never accomplished because it permits substitute service on the defendant’s insurance carrier.  Thus, it makes it possible for trial to proceed against a defendant who never personally received notice of the suit filed against him.

Opinion 128 focuses on the ethical obligations of counsel and does not specifically address issues counsel may face should a case proceed to trial.  Assuming counsel is still representing a client who was never served personally with notice of suit and will not be present at trial, how should counsel and the courts treat the fact that the defendant is not present during the proceedings?  What, if anything, should a jury be told about the defendant’s absence, and how can defense counsel argue against any negative inference that might be raised by plaintiff based on defendant’s absence?

Mention of a defendant’s absence can be excluded on the basis of relevance alone. A defendant’s absence at trial is irrelevant to the jury’s liability determination because it suggests nothing about his conduct at the time of the subject incident, and it is of no relevance to the jury’s determination of damages.

The circumstances in which a defendant is absent at trial because he was never initially served with notice of the suit against him contrast sharply with those in which a defendant actively chooses not to testify.  Where a defendant who is present at trial declines to answer specific questions on Fifth Amendment grounds, an adverse inference may be raised.  In that situation, it can reasonably be argued that an adverse inference should be drawn from the defendant’s willful silence.  However, decisions of Colorado courts show that such an inference is inappropriate where a defendant’s failure to testify was not based on the Fifth Amendment privilege against self-incrimination.  Compare State Bd. Of Chiropractic Examiners v. Stjernholm, 935 P.2d 959, 794 n. 16 (Colo. 1997) (argument in favor of adverse inference presumption lacks merit where refusal to testify was based on attorney-client privilege), and People v. Tafoya, 833 P.2d 841, 844 (Colo. App.) (instruction to jury that defendant’s absence at trial can be considered as evidence of guilt appropriate only where defendant voluntarily and knowingly absented himself from trial), with Asplin v. Mueller, 687 P.2d 1329, 1331-32 (Colo. App. 1984) (adverse inferences in civil actions permitted where parties refuse to testify in response to probative evidence offered against them); see also Bair v. Faust, 408 S.W. 3d 98 (Mo. 2013) (adverse inference framework inapplicable where party against whom inference was offered did not choose not to testify).

Unlike a defendant who asserts the privilege against self-incrimination in response to questions concerning his conduct, the defendant who was never served personally with notice of suit is in no way declining to testify on grounds that his testimony would incriminate him.  Thus, the defendant’s absence is of no probative value.

The decision of the Missouri Supreme Court in Bair v. Faust, 408 S.W. 3d 98 (Mo. 2013) provides support for the argument against an adverse inference.  It illustrates how dangerous such an inference is.  In Faust, the plaintiff failed to appear during voir dire and planned to be absent from trial for strategic reasons. Id. at 98-101.  To prevent the plaintiff from making a “grand entrance” during trial, the trial court ordered that she appear before the jury was brought in, if at all.  Id. at 102.  The plaintiff failed to appear as directed and was excluded from trial, and the trial court allowed defense counsel to make adverse inferences regarding the plaintiff’s absence throughout the proceedings.  Id at 100, 102.

The Missouri Supreme Court concluded that the ruling allowing an adverse inference to be raised shocked the sense of justice.  Id. at 102.  It was fundamentally unfair for the court to exclude the plaintiff from trial and then permit defense counsel to make negative inferences from plaintiff’s absence. Id. at 102-04.  This was true despite the fact that the plaintiff’s exclusion was based on her intentional failure to appear.  Id.  The plaintiff suffered an unfair disadvantage resulting in manifest injustice.  Id. at 104.

The impropriety of an adverse inference is even more clear in the substitute service context.  C.R.S. § 42-7-414 allows plaintiffs to penetrate insurance coverage without service on defendants.  The defendant’s absence from trial is the result of a statutory anomaly permitting service on an insurance carrier with no guarantee that the defendant will be available for trial or have personal notice of the proceeding.  It is therefore fundamentally unfair for the court to permit an adverse inference against a defendant where the plaintiff has been permitted to prosecute the action against him without achieving personal service.

It will, of course, be obvious that a defendant is not present for the proceedings, and it will be difficult for both parties to remain silent on the issue, allowing the jury to speculate as to why they haven’t heard from the defendant.  The substitute service statute makes the “missing client” problem especially awkward because the jury is left to draw its own conclusions as to why the defendant does not appear and yet there is a full defense.  Any comment on a defendant’s absence may create greater problems than does silence on the issue, because any explanation by defense counsel would involve the defendant’s insurance carrier and thus be highly objectionable.  However, because the statute essentially allows a direct cause of action against the defendant’s insurer, is there a benefit to openly discussing the fact of insurance coverage during trial?