(concurring in part and dissenting in part).
I concur in the majority’s vacation of the default judgment but dissent from its conclusion that the jury’s verdict of $195,000 is to stand in the event that a new trial results in a finding of liability against the defendants or either of them.
I would set aside the damage award and order a complete new trial because the refusal of the court below to grant a continuance of the damage trial was a clear and prejudicial abuse of discretion and denied the defendants their constitutional right to a fair trial. We are setting aside the default judgment of liability because of the combination of the negligence of the defendants’ attorney and the plaintiff’s failure to comply with the rules, which resulted in the entry of the default judgment with no actual notice to the defendants or their attorney. It seems to me that the inadequacy of notice as to damages flowed from similar conduct of defendants’ attorney and plaintiff’s counsel, this time with the additional inadequacy of the machinery of the court itself, and it therefore can have no less effect than does the lack of notice on the liability judgment.
I deal first with the stipulation. I find it impossible to conclude that defendants are bound by the stipulation which their original lawyer made. It was irrational and improvident and was the result of the utter ineffectiveness of a lawyer who was acting in circumstances in which his own interest was deeply immeshed and who yielded to judicial pressure following a breakdown in the machinery of the court which denied to the defendants due process of law.
Defendants’ lawyer neglected to put in writing the agreement he made with plaintiff’s counsel on July 29, 1960 that he be afforded additional time to answer the complaint. In the years which followed he never filed a pleading, never invoked any of the weapons of discovery, and even failed to enter an appearance on the defendants’ behalf. He simply forgot about their case. Plaintiff’s counsel, as the majority opinion shows, in undoubted good faith disregarded his presence in the case and in violation of the requirements of the rules obtained a default judgment on October 5, 1960. The machinery of the judicial process then added a fresh injustice to the defendants. On October 30, 1963, a jury was selected without any notice to defendants and on the same day the deputy clerk of the court in charge of the calendar mailed a notice to them that the trial on damages would be held on November 1, at 10:00 A.M. On the evening of October 31, 1963, the defendants’ lawyer learned from his clients, whose rights he should have been guarding, that they had received that afternoon the notice from the clerk. He sought a continuance because he was unprepared for the hearing as a result of the inadequacy of the notice. The judge pointed out that the jury had already been selected and denied the motion. He then went on to say: “Of course I know something of the background of this matter from what you told me this morning prior to coming into court, but I am wondering whether there is any possibility of reaching some sort of a stipulation whereby if the liability question should be reopened, whether you would be willing to be bound by the amount of damages which this jury might find.” The lawyer immediately *918responded: “I would so stipulate, Your Honor.”
As the majority well says, this was indeed “a remarkable stipulation”, made by a lawyer who was about to go unwillingly to trial of the damage issue after he himself had objected that he had not had adequate time to prepare. That his objection was well founded is obvious, and as the majority says, the circumstances of the damage trial were “about as disadvantageous to his clients as could be imagined.” To me the lawyer’s appearance in the judge’s chambers and later in the courtroom left the defendants in the same position in which they would have been if they had had no lawyer, with the single exception that his intruding presence resulted in a stipulation which the majority now holds is a barrier to the setting aside of the damage verdict. I believe that a grossly negligent lawyer cannot be said to have represented the defendants when he agreed so irrationally to the judge’s suggestion that he stipulate that the verdict in the damage trial about to be held should stand if the liability question should be reopened. A stipulation so inexplicable on any rational ground should not bind the defendants.
Moreover, the lawyer was not free to act as attorney for his clients but was forced to exercise a judgment in circumstances where his personal liability had become involved. He had learned the evening before that a judgment had been entered by default against his clients three years earlier as a result of his neglect. The calm and detached judgment which marks the difference between a legal adviser and a litigant was in these circumstances not available to the defendants. Their lawyer, who had shown his inability to serve them adequately, was now called on to serve two masters, one of whom was himself.
In addition, I believe that the setting in which the stipulation was made shows that the judicial process itself was at least in part responsible for it. With little or no experience in federal practice, the lawyer came to the judge’s chambers faced with the need to set aside a default judgment already entered and an imminent trial on the question of damages in which the jury had been selected and was standing by. Improvident bargaining between the parties or their counsel would be bad enough. But it is obvious that the objection to the denial of a continuance was cast away because the suggestion to do so came from the court in circumstances which referred to the possibility of reopening the liability question. This was a distraught lawyer’s yielding to a suggestion of the court, a suggestion that he should waive his objection without any reason whatever, — unless it was to please the judicial power whose discretion was being appealed to on the liability question. It seems evident to me that in the circumstances no choice was exercised and that instead of the classic requirements of a voluntary and intelligent relinquishment of a known right1 there was here only the headlong abandonment of a fundamental right. The power which brought forth the stipulation is enough to render it involuntary. I would hold that the court’s suggestion of waiver after it had erroneously refused a request for continuance was an abuse of discretion so clear that we should notice and correct it here as fundamental error.
In my view therefore the stipulation was invalid because it was both improvident and unauthorized and was the result of judicial pressure.
The majority opinion concedes the improvidence of the stipulation but gives it effect because in its view the damage award was not excessive. The stipulation therefore disappears from the case, and the majority in effect holds that regardless of the stipulation the damage verdict should stand because the refusal of a continuance, however erroneous it might have been, was harmless. In my view, however, the combined circumstances in this case were such that de*919fendants need not prove they were harmed, because the refusal of a continuance deprived them of their constitutional right to a fair trial. They had a right to adequate notice of the damage trial so that they could properly prepare their case, they also had a right to participate in the selection of the jury which was to try the issue, and they had a right to the effective assistance of counsel.
It was improper, in my view, to have a jury, in whose selection defendants had no opportunity to participate, standing by while they were given notice to proceed practically at once to trial. They may not have had a constitutional right to trial by jury of the damage issue after default,2 but the default is now being set aside. In any event, where a jury trial, although not constitutionally required, is held, a party is entitled to participate in the selection of the jury,3 and the denial of this right is reversible error without a showing of prejudice. See Swain v. State of Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Yet here the jury already had been selected before defendants received the notice of trial.
The fundamental requirement of due process is an opportunity to be heard after adequate and reasonable notice.4 As Mr. Justice Stewart recently said in Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), “It is clear that failure to give the petitioner notice of the pending * * * proceedings violated the most rudimentary demands of due process of law. ‘Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, at 313 [70 S.Ct. 652, 94 L.Ed. 865].” (p. 550, 85 S.Ct. p. 1190) “A fundamental requirement of due process is ‘the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394 [34 S.Ct. 779, 58 L.Ed. 1363]. It is an opportunity which must be granted at a meaningful time and in a meaningful manner.” (p. 552, 85 S.Ct. p. 1191) Yet here defendants received notice that their trial would begin at 10:00 o’clock in the morning on the day following their receipt of the notice. In these circumstances notice and an opportunity to be heard, the badge of due process, become idle words if the damage verdict is permitted to stand.
The supposed reasonableness of the award is inadequate support for a judicial judgment arrived at without a fair trial. Since the possibility of prejudice is inherent in a denial of the constitutional right of the defendants to a fair trial, there is no need to prove it. The Supreme Court in Armstrong v. Manzo, supra, set aside an adoption decree because no notice of the proceeding had been given to the natural father, whose written consent was required unless he had failed to contribute to the child’s support. The court held the proceeding invalid for want of notice without stopping to consider whether the father had a valid defense or whether the decree appeared to be appropriate on the merits. See also Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct. 625, 59 L.Ed. 1027 (1915).
The right to counsel in criminal cases as essential to due process, is commonplace since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and in such cases prejudice need not be shown. White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed. 2d 193 (1963). The lack of effective *920assistance of counsel is a deprivation equivalent to the absence of counsel.5 Defendants in this civil case had a lawyer, but as the majority opinion shows, his intruding presence did them no good but some harm. I cannot believe that a trial in which such an elementary absence of fairness existed as a result of the inadequacy of the attorney can yield a result which should be permitted to stand consistent with the Due Process Clause in the combined circumstances of this case.
In any event, I do not know how we can judge the fairness of the amount of a verdict arrived at without due process; we have in reality not heard the defense on that subject.6 Injustice cannot lift itself by its own bootstraps. We must therefore presume that harm was done to defendants who had no opportunity to defend.
Aside from the fundamental constitutional rights of the defendants, as a matter of practical justice the damage verdict should not be permitted to stand where the question of liability is to be retried. It is the great and saving virtue of the jury system in accident cases that it permits laymen guided by the courts on questions of law to work out in a worldly way an accommodation between the strict requirements of law and their everyday view of justice. That a defendant therefore suffers disadvantage when a trial is limited to damages and liability is conceded is a fact of life, acknowledged everywhere but in courtrooms. It is therefore evident that the defendants were prejudiced when the jury was called to determine the amount of damages without considering liability. If there were no other consideration, I believe that now that the question of liability is to be retried, the interests of justice require that the damage question be retried at the same time. The limitation of a new trial by excluding some of the issues decided is exceptional, and the power to grant a partial new trial must be “exercised with caution”. Geffen v. Winer, 100 U.S.App.D.C. 286, 244 F.2d 375, 376 (1957). A retrial of liability will be less than the full relief the defendants are entitled to have, for its effect will be insulated from the damage question into which it ordinarily percolates.
We have held that a jury should not be permitted to determine the amount of damages if in doing so it may believe it is engaged in a theoretical question. This is because awareness that a defendant will actually be required to pay what the jury awards is a “significant safeguard against capricious or cavalier treatment of the issue of damages.” Romer v. Baldwin, 317 F.2d 919, 922-923 (3d Cir. 1963). In the present case the charge of the court shows that the jury was not even clearly told that liability had been decided in favor of the plaintiffs and against the defendants.7 The jury, therefore, when it decided on the amount of damages might well have speculated that liability was a separate subject under separate consideration and that their verdict might be rendered academic by its disposition. Now that the default judgment is being set aside, it seems to me unjustified to deny a new trial on damages.
I am not unmindful that in the medley of confusion on both sides, much of it in good faith, the granting of relief to the defendants, which is equitable in na*921ture, should be surrounded by protections which a wise discretion should afford to a seriously injured minor plaintiff. In vacating both the, default judgment and the award of damages, I would therefore condition this relief on the defendants’ filing a bond to secure to plaintiff the payment of whatever verdict and judgment he may obtain on a new trial. I would leave the amount of the bond to the discretion of the court below, which has the means to inquire into the financial circumstances of the parties and to determine what would be appropriate.
. Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
. Barber v. Turberville, 94 U.S.App.D.C. 335, 218 F.2d 34 (1954); 5 Moore, Federal Practice (1964) If 38.19[3].
. Kiernan v. Van Schaik, 347 F.2d 775 (3d Cir. 1965); see Swain v. State of Alabama, 380 U.S. 202, 209-222, 85 S.Ct. 824 (1965); Gulf, Colorado & Santa Fe Railway Co. v. Shane, 157 U.S. 348, 15 S.Ct 641, 39 L.Ed. 727 (1895).
. E. g., United States ex rel. Collins v. Claudy, 204 F.2d 624, 627 (3d Cir. 1953).
. See Powell v. State of Alabama, 287 U.S. 45, 56-59, 53 S.Ct. 55, 77 L.Ed. 158 (1932); United States v. Helwig, 159 F.2d 616 (3d Cir. 1947); Townsend v. Bomar, 351 F.2d 499 (6th Cir. 1965).
. Indeed the record shows that defendants filed a motion for new trial claiming that the verdict was excessive. The motion was dismissed for want of prosecution when their original lawyer failed to appear for argument.
. They were told only that the matter had been “decided under the law” and that they were to have “no thought whatever about who caused the accident,” and were to shut their “minds entirely as to how it happened and who caused it, who is responsible for it or anything of that kind”.