I respectfully dissent. The majority’s formulation allows for the possibility that “extraordinary circumstances” can warrant exclusion of a party. But if this case does not present extraordinary circumstances, except for incarcerated litigants it seems that no circumstances could meet this test. It thus is in practical terms an absolute right to a jury trial in civil cases. I agree with the majority that the right to a trial includes a very strong presumption that a party has the right to be physically present at the trial. However, I do not believe this presumption stems from the right to a jury trial in a civil case. Nor in my view does any other provision of the state or federal constitution' bar exclusion of a party if the trial court finds that “extraordinary circumstances” require it. Accordingly, I would reaffirm the standard announced by the Court of Appeals in Gage v. Bozarbh, 505 N.E.2d 64 (Ind.Ct.App.1987), and allow a plaintiff to be excluded in a bifurcated trial in the unusual circumstances when a party establishes that another party’s “appearance or conduct is likely to prevent the jury from performing its duty” and the trial court has determined the other party cannot “assist counsel in any meaningful way.” Id. at 67-68.
The proposition that a party is entitled to be present at a civil trial seems intuitive to most American lawyers and judges. Yet the source of such a right, if there is one, is rarely explored. The presumptive *1273or absolute right of a civil litigant to be present at trial is not found in the text of any provision in either the federal or state constitutions. Until now, Gage was the only relevant precedent in the state. The Court of Appeals in that case held that there is no absolute right to be present in the liability phase of a civil personal injury case. Rather, if the party’s presence did not serve the purpose of assisting counsel, but would risk prejudicing the jury, exclusion may be proper. The federal courts follow the same rule. See Gonzalez-Marin v. Equitable Life Assurance Soc’y, 845 F.2d 1140, 1146 (1st Cir.1988); Helminski v. Ayerst Labs., 766 F.2d 208, 218 (6th Cir.1985).
It seems to me that the source of this right is instructive in determining its scope. I believe the right to be present derives not from the right to a jury trial, but from both the federal right to due process of law and the concept of fundamental fairness in judicial proceedings that is implicit, if not explicit, in our state constitution. Because it stems from procedural fairness, the right is not absolute and must be balanced against considerations of fairness to other parties. As a result, I agree with the authorities that have concluded there is a right to be present if a party can meaningfully communicate with counsel, but if not, the presence of the party is subject to a balancing test in which fairness to other parties is a proper consideration. This balancing is fact sensitive and deference should be shown to the trial court’s ruling. Accordingly, I would affirm the trial court.
I. Source of the Right to be Present
A. The Right to a Jury Trial
The majority concludes that the right to be present is ancillary to the right to trial by jury. I think this is contrary to precedent, and also leads to incongruous results.
First, there is little authority for the view that the jury trial right includes an absolute right to be present. There are some differences between state and federal rights to a civil jury. But I am aware of no difference between the two constitutions in the procedures to be followed if a jury is required. Rather, both constitutions purport to preserve the jury right as it existed at common law. Any differences between the two are in the types of lawsuit in which the right to a jury trial attaches, not to what that right entails if it applies. Compare Songer v. Civitas Bank, 771 N.E.2d 61 (Ind.2002), with City of Monterey v. Del Monte Dunes, Ltd., 526 U.S. 687, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). Accordingly, federal precedent is relevant in determining what rights are ancillary to the right to a jury trial.
As far as I can determine, no federal court has found that the right to be present at trial is guaranteed by the right to a jury trial in a civil case. To the contrary, the Seventh Amendment right to a jury trial does not guarantee a civil litigant an absolute right to be present during the trial. Federal precedent, like prior Indiana precedent, is clear on this point. See Helminski, 766 F.2d at 213 (noting due process, not the Seventh Amendment, is the source of any right to be present); see also Harris v. King, No. 96-2452, 1997 WL 792472, at ⅜ 1, 1997 U.SApp. LEXIS 36353, at * 3 (8th. Cir.1997) (unpublished); Latiolais v. Whitley, 93 F.3d 205, 207-08 (5th Cir.1996), American Inmate Paralegal Ass’n v. Cline, 859 F.2d 59, 62 (8th Cir.1988) (per curiam).
Finally, if the right is derived from the right to a jury trial, it would not be equally available in a bench trial. Although I find little direct relevant authority, it seems to me that the right to be present is at least as strong in a bench trial where the countervailing factor of fairness to the other *1274party may be of diminished weight. Thus both precedent and reason lead me to reject the jury trial right as the source of the right to be present.
B. Due Process
Federal cases addressing this issue have balanced considerations of fairness to the excluded party against any prejudice to interests of others. See Helminski, 766 F.2d at 213 (party’s appearance is not alone a basis to exclude, but exclusion may be proper if there is no meaningful opportunity to communicate). Excluding a litigant who can effectively communicate with counsel would deny the litigant the opportunity to be heard and frustrate the very notions of fairness that the Due Process Clause protects. And I agree that there is no merit to the claim that retention of counsel waives the right to be present. Carlisle v. Nassau County, 64 A.D.2d 15, 408 N.Y.S.2d 114, 117 (1978). But if a party cannot assist counsel in any meaningful way, fairness to that party becomes a factor of diminished weight. And if the party’s presence may, as Gage puts it, “prevent the jury from performing its duty,” fairness to the other parties is also entitled to consideration. If that occurs, and there is no opportunity for meaningful communication, the balance of fairness tips in favor of exclusion, and due process does not bar this result. Gage, 505 N.E.2d at 67. Indeed, weighing the interests involved and then barring a party from being present occurs with some regularity at the trial court level in other contexts. For example, challenges to the right to exclude a litigant are most prevalent in cases where a litigant is incarcerated. In such cases, the incarcerated civil litigant’s right to be present is not absolute. In determining whether to exclude the litigant, the court must weigh the prisoner’s need to be present against concerns of expense, security, logistics and docket control. Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 111-12 (4th Cir.1988). As a result, an incarcerated civil litigant is often barred from the courtroom. To be sure, the district court may not summarily exclude a prisoner-plaintiff from the trial of his civil rights suit. Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir.1977); Stone v. Morris, 546 F.2d 730, 735 (7th Cir.1976). But there are a variety of factors that must be balanced in reaching this decision. Just as the trial court has discretion to deny prisoner-plaintiffs the right to be present on procedural grounds, in my view trial courts also have discretion to deny other litigants access to some phases of a trial in those rare cases where that action is appropriate.
C. Other State Constitutional Sources
As the majority notes, Indiana constitutional history sheds little light on the presence vel non of an absolute right to be present in a civil trial and Gage is the only relevant precedent in this state. Most states follow the federal rule in this respect and permit exclusion where communication is not possible. See Morley v. Superior Court of Ariz., 131 Ariz. 85, 638 P.2d 1331, 1333 (1981) (plaintiff was in a coma and unable to communicate); Dickson v. Bober, 269 Minn. 334, 130 N.W.2d 526, 529 (1964) (plaintiff unable to comprehend trial or express himself); Province v. Center for Women’s Health & Family Birth, 20 Cal.App.4th 1673, 25 Cal.Rptr.2d 667, 675 (1993) (noting infant unable to communicate); Green v. N. Arundel Hosp. Ass’n Inc., 366 Md. 597, 785 A.2d 361, 378 (Ct.App.2001) (plaintiff could not comprehend or participate in the proceeding). Often this result is reached without discussing what, if any, constitutional provision is relevant.
The majority notes Oklahoma has found a right to be present to be grounded in its *1275constitutional counterpart to the “open courts” provision found in Article I, § 12 of the Indiana Constitution. Cary v. Oneok, Inc., 940 P.2d 201 (Okla.1997). In my view, Ccm/ does not support the notion that the right to be present is absolute. Indeed Cary itself states that the Oklahoma courts “ha[ve] never held, nor do we hold here that a party’s right to be present in the courtroom is absolute.” Id. at 204. In addition, Cary found that the party could assist counsel. Id. at 205. Under those circumstances, I agree that the balance of fairness must tip in favor of permitting the party to attend, but I do not believe an “Open Courts” provision is a factor in that result. More generally, the Open Courts provision of the Indiana Constitution assures all litigants an opportunity to be heard but says nothing about the forum and manner in which that proceeding is to go forward. Nothing in the text or purpose supports any particular procedural right. Rather it guarantees a remedy “by due course of law,” but leaves it to the “law” to prescribe what course is due. See McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind.2000).
The case law from other jurisdictions finding a right to be present from other sources is equally distinguishable on various grounds. For example, Carlisle dealt with whether a party waives its right to be present by choosing competent counsel, and does not deal with whether the party could meaningfully assist counsel. Fla. Greyhownd Lines, Inc. v. Jones, 60 So.2d 396 (Fla.1952), states that the court will not exclude a plaintiff because of physical appearance, but gives no constitutional basis for its decision. Rozbicki v. Huybrechts, 218 Conn. 386, 589 A.2d 363 (1991), concerns whether a person who has the right to be present at trial also has the right to be present during voir dire, and does not reach the question concerning whether the right to be present is absolute. In Mason v. Moore, 226 A.D.2d 993, 641 N.Y.S.2d 195 (1996), the party was not excluded because, in part, his presence was necessary to assist experts during their testimony. Moreover, Fla. Greyhound Lines, Inc., Bryant v. Kan. City Rys. Co., 286 Mo. 342, 228 S.W. 472 (1921), and Chicago Great W. Ry. Co. v. Beecher, 150 F.2d 394 (8th Cir.1945), all involved the review of the trial court’s refusal to exclude the plaintiff. Because the discretion should be given to the trial court, decisions upholding a refusal to exclude do not support an absolute right to be present.
D. The Right to a Fair Trial
Although found in the text of no particular constitutional provision, fundamental fairness at judicial proceedings is assumed and required by the Indiana Constitution. Sanchez v. State, N.E.2d 509, 514-15 (Ind.2001). Similarly, the Due Process Clause of the Fourteenth Amendment applies in state judicial proceedings and carries with it a federal constitutional right to a fair trial in a civil case, albeit no right to a particular result. See Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248 (7th Cir.1975); Bailey v. Systems Innovation, Inc., 852 F.2d 93, 98 (3d Cir.1988) (“[Fjairness in a jury trial, whether criminal or civil in nature, is a vital constitutional right.”); John E. Nowak & Ronald D. Rotunda, Constitutional Law § 13.8 (6th ed. 2000) (the Constitution guarantees a fair procedure, not a particular result). But this right under either the federal or state constitution does not guarantee the right to be present. Rather, it guarantees fundamental fairness to all parties. A claim of right must be evaluated in terms of its impact on others as well as vindication of the interests of the claimants. When other constitutional concerns, such as due process, cannot be infringed upon *1276because of the factual circumstances of a particular case, the defendant should have the opportunity to convince the court that his or her right to a fair trial will be in jeopardy unless the plaintiff is barred during the liability phase of a trial. In other words, if a civil trial is bifurcated, and the plaintiff cannot meaningfully aide counsel, this same principle of fairness permits a party the opportunity to show that a fair trial requires the exclusion of an opposing party in the liability phase.
II. Exclusion in This Case
Here, the trial court made a determination that the presence of the plaintiff would be “highly prejudicial to the Defendants” and that the plaintiff “could not testify about the events related to liability and could not aid in the presentation of Plaintiff[’]s case.” The child has numerous physical and mental disabilities, including cerebral palsy and Erb’s palsy. I do not suggest that these conditions in any way diminish her due process rights. But neither do they overcome the right of an opponent to a fair trial. In the unusual circumstance where a party cannot meaningfully assist counsel and the party’s presence may impair a. fair trial, a trial court judge should be vested with the discretion to exclude the party. Here, the trial court judge had the opportunity to observe the child in a videotaped deposition and assess her ability to aid counsel and the potential affect of her appearance on a jury. The child also was unable to testify about any matters concerning the liability of the defendants. I do not believe that based on these facts the trial court judge abused his discretion in determining that her appearance, though highly relevant to damages, was not a proper factor in the liability phase.
In short, the trial court found that the defendant’s right to a fair trial would be infringed by plaintiffs presence, and that the due process rights of the plaintiff would not be meaningfully impaired by her absence. This finding is highly fact sensitive and should be reviewed under an abuse of discretion standard. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind.2002) (trial court’s application of law to a fact sensitive inquiry is reviewed for an abuse of discretion), Gage, 505 N.E.2d at 67 (trial courts have the discretion to exclude plaintiffs).
Just as courts often exclude evidence if its prejudicial effect outweighs its probative value, courts may exclude a party when it can be demonstrated that his or her presence would be prejudicial and the absence of the litigant would not impair other constitutional guarantees because of the party’s inability to assist counsel. Even if the presence of a party is significantly prejudicial, other interests — most frequently the right to assist counsel — may nevertheless require the party’s presence. But in the absence of a showing of the impairment of those interests, exclusion may be ordered. That is a matter for trial court discretion and I would not find it abused in this case.