CONTINUANCE
The adjournment or postponement of an action
pending in a court to a later date of the same or
another session of the court, granted by a court in
response to a motion made by a party to a lawsuit.
The entry into the trial record of the adjournment
of a case for the purpose of formally evidencing it.
Courts, by virtue of their authority to hear
and determine cases, have inherent discre-
tionary power to grant or deny continuances, subject to restrictions imposed by statute. Continuances
are granted when necessary to avert a
miscarriage of justice but will be denied if
sought merely for the purpose of delay. Criminal
defendants are entitled to a SPEEDY TRIAL
unless good cause justifies a continuance of the
action.
In ruling on a motion for a continuance, a
court examines all the facts and circumstances
of a case—in particular, the applicant’s GOOD
FAITH, the purpose and necessity for the postponement,
the probable advantage that could
result from the continuance, and the possibility
of prejudice to the rights of other parties. If
there are multiple defendants in a case, a continuance
granted to one of them postpones the trial
of the case against all of them. A continuance is
usually granted if requested by a defendant,
since the plaintiff should have adequately prepared
his or her case before commencing the
action.
A court can, sua sponte (on its own motion),
order a continuance in certain instances, such as
when none of the parties appears on the date of
the hearing.
A continuance can occur by operation of law
when a case has not been tried or otherwise disposed
of during a particular term because of
unanticipated problems, such as the death of the
presiding judge. The case is automatically postponed
until the following term.
Parties in a lawsuit file pleadings (written
statements presenting each side of the case
before trial to elucidate the issues to be
resolved). A plaintiff whose complaint fails to
state a CAUSE OF ACTION is not entitled to a continuance
to correct this failure, but a defendant
can make a motion for a dismissal of the action.
Nor can a defendant whose answer to the plaintiff
’s complaint does not allege a meritorious
defense cure this deficiency by seeking a continuance,
but the plaintiff might make a motion for
a SUMMARY JUDGMENT in his or her favor. A
continuance may be granted, however, in a case
that was scheduled for trial before the issues
were joined or clearly established.
After a trial has begun or while motions are
made pending the decision, a court can grant a
continuance provided adequate grounds exist.
The trial of a case that has been remanded
(sent back) by an appellate court to a lower
court for a new trial may be continued at a later
date if there is not enough time to prepare for
the new trial.
When the parties consent to or stipulate a
postponement of a case, a court will grant a continuance
only if their agreement meets its
approval.
Grounds
Continuances are granted only if valid
grounds exist that justify the postponement of
the action. For example, a court will continue
a case in which all the interested parties have
not appeared in order to bring them into the
action so that they may present their side of
the case. If SERVICE OF PROCESS has not been
properly made upon a defendant, a court may
grant a continuance to perfect service so that a
plaintiff will not be deprived of an opportunity
to have the action tried. A delay in filing
pleadings, which surprises the opposing party
and affects the issues in an action, ordinarily
entitles the adverse party to a continuance,
since that party must be given time to prepare
a response before the trial in order to prevent
prejudice to his or her rights. A continuance
may be granted for the accidental loss or
destruction of papers in an action provided
they cannot be readily replaced and the applicant
for the continuance was not responsible
for their loss.
Lack of Preparation Where the party making
the motion is guilty of inexcusable ignorance,
delay, or NEGLIGENCE in preparing the
case, the court will deny a motion for a continuance.
An applicant who can, however, demonstrate
some legal or equitable reason or exercise
of diligence in trying to prepare for the case may
win a continuance.
Change of Counsel Withdrawal of legal
counsel or employment of new counsel immediately
preceding or during a trial does not necessarily
warrant a continuance of the action. For
example, if it is clear that a party has changed
attorneys a number of times solely as a dilatory
tactic for the purpose of delay, that party will be
denied a continuance. Only where the circumstances
of the case demonstrate that a miscarriage
of justice will ensue from a denial of a
continuance will a court seriously consider postponing
the action.
Pendency of Action A continuance is
granted when it is in the interests of justice to
await the outcome of another proceeding affecting
the same parties or where the interests of the
parties are closely related, such as in cases dealing
with VICARIOUS LIABILITY.
Illness The illness of a party to a lawsuit
justifies a continuance only if injustice would
result from proceeding with the case. If an illness
is feigned or alleged merely for the purpose
of delay, the applicant’s motion will be denied
and the applicant might be held in CONTEMPT.
A party who becomes ill before trial should
notify the court and the other parties, as soon as
it is reasonably practicable to provide such
notice, that his or her condition may jeopardize
his or her participation in the proceedings. An
AFFIDAVIT or certificate of a physician that a
party’s illness precludes his or her presence at
trial should be filed with the court.
The illness of the judge presiding over the
trial operates as a continuance of the action.
Determination
A motion for a continuance is heard by the
court which rules upon it after an evaluation of
the evidence before it. If a continuance is
granted, the trial court will set its duration with
regard to the rights of both parties and impose
any necessary restrictions. During the time of the
adjournment the court may modify or revoke its
order if reasonable cause is shown or if the court
is satisfied that no injustice will result.
Successive continuances sought by a party
are scrutinized closely by a court because there is
a likelihood that they are sought for dilatory
purposes. Unless the applicant clearly establishes
that a postponement is essential to the
integrity of the judicial process and a preservation
of the rights of the parties, it will be denied.
A motion based upon newly discovered evidence
will be denied if the applicant could have
discovered the evidence sooner by the use of reasonable
efforts.
A continuance expires on the date specified
in the court order. If the basis for the continuance
ceases to exist prior to that date, the court
may revoke its order and require that the case
proceed to trial.
Waiver
A party relinquishes or waives the right to
obtain a continuance if he or she (1) fails to
request one; (2) proceeds with the case after the
motion for a continuance has been denied without
making an exception to the ruling; or
(3) voluntarily discontinues the action.
FURTHER READINGS
Yeazell, Stephen C. 1998. Federal Rules of Civil Procedure:
With Selected Statutes and Cases. Gaithersburg, Md.:
Aspen.
CROSS-REFERENCES
Motion; Pleading; Speedy Trial.
