What does a Court Case Continuance Mean?
A court case continuance can be thought of as a postponement of a court proceeding or trial rescheduled for a later date. A party to the case or their lawyer will request the continuance from the court if he or she believes circumstances necessitate a delay in the hearing, trial or other scheduled event. There are many reasons why a continuance may be necessary or advisable, including but not limited to:
For example, if one side has a scheduled medical procedure that requires a lengthy recovery, his or her attorney may request a postponement of trial until that person has recovered and is able to attend.
Continuances are almost universally subject to discretion from the court. Usually, the party requesting the delay must show, through documentation and/or testimony , exigent circumstances or a compelling need to continue the case in order to convince the court to grant an extension. There are certain situations established under the law where a continuance might be granted as a matter of right. Courts are generally guided by statutory provisions, rules of court and sometimes even judge-made law when deciding on whether to grant a party’s request for a continuance.
In criminal cases, the defendant has a right to more time to prepare his or her defense, which cannot be waived by a lawyer or anyone else unless the accused is present when the waiver occurs. In family law matters, divorcing spouses are typically granted a 90-day continuance, with or without cause, as long as the child support payments are being made and there is no indication of vulnerability in the case.
Variables That Affect the Number of Continuances
Various factors can influence how many times a court case may be continued. These include: the rules of the jurisdiction in which the case is pending, the complexity of the legal and factual issues of the case, and the reasons that are provided to the court for the requested continuance. For example, Illinois Supreme Court Rule 231 allows each party in an Illinois state court case one continuance as a matter of right of not more than 60 days on motion and notice given (assuming the movant is not responsible for the previous delay.) 735 ILCS 5/2-1007.
Using the above example, if a case is continued once for 60 days, the party requesting the continuation will not have any additional right to continue the case. The party will have to effectively ask the court for the second and third continuance "as a matter of discretion." 735 ILCS 5/2-1007; People ex rel. Cty. of La Salle v. Green, 880 N.E.2d 557, 561 (Ill. App. Ct. 2007). The court will grant or deny the motion depending on the circumstances, such as the reason provided for the requested continuance, etc.
Similarly, with respect to Illinois Federal Court practice, U.S. District Court for Northern District of Illinois Local Rule 41.2 permits one "voluntary dismissal by the Plaintiff without order of court upon the filing of a stipulation signed by all parties who have appeared in the action." Id. In the event a case is dismissed by the parties as noted above, "absent an appearance by a Defendant, a complaint dismissed by the Plaintiff shall be considered dismissed with prejudice upon the expiration of 20 days after such dismissal if no further action is taken by the Plaintiff within that time period." Id. Federal courts applying this rule have noted that, "the key of the rule … is that the Plaintiff’s action is dismissed – in effect without prejudice but with a 20 day limitation if there is a failure to take further action." Chicago & Nw. Transp. Co. v Yoder, 424 F.2d 115, 116 (7th Cir. 1970).
Other jurisdictions vary on when a case can be continued, how many times, and for what reasons. These variations can be accounted for in large part to differences by state or federal policy, and local rules. For example, some jurisdictions allow only for one contested or voluntary continuance of a hearing, while others set no limits. Similarly, local rules differ to account for the number of times a hearing can be continued before having to reset the hearing altogether.
Common Causes for Asking for a Continuance
There are many reasons why parties in a lawsuit might seek a continuance of the court setting on the merits of the case. One reason is due to a lack of preparedness at the initial setting. For example, the lawyer may not yet have received materials from his or her client, or may have scheduling problems preventing him or her from being prepared. Another reason a party might seek a continuance is because of an unanticipated conflict in scheduling. For example, a soon to be married couple has a honeymoon scheduled inquiring about a continuance after previously agreeing the case would resolve quickly. One common reason in litigation is that the parties seek to introduce additional evidence and need more time to gather it and present it to a judge. Also common is the need for additional time to cross-examine or obtain testimony from a witness whose availability may have become less certain after the scheduling of the court setting.
Limitations and Restrictions on Continuances
Courts are always reluctant to continuously grant continuance after continuance. The obvious reason is that at some point the case must be heard with finality. Regardless of how busy a trial court may be, there is a limit on how long a case can linger before it must be resolved.
For one, there are judicial assignments and calendars to consider. As a general rule, the first request for continuance is reasonably easy to obtain because the court can simply notify the assigned department to grant the continuance and move forward with the process. But when the same case is repeatedly continued, these simple requests become a burden on the staff as and often times require the presiding judge to micro-manage the judicial assignments and calendars. At this point , continuances are viewed as an abuse of discretion to the court’s resources. Many courts will flat out deny any further continuances.
It must be remembered that courts work tirelessly on a day to day basis. They have their assigned calendar and must make almost 100% compliance with those days. When a case does not appear it is very disruptive to the entire department. Continuances are typically only granted if one of the parties or their counsel is persistently conflict ridden or ill. In contrast, there is no prohibition on parties late arriving to court to receive a granted request for continuance.
Problems That Can Occur With Too Many Continuances
While there is no strict rule on how many times you can ask for a continuance, constantly pushing back court dates can cause problems for you and your case. First and foremost, if you are continually requesting a new court date, the judge may start to view you as being disorganized with your files, or even put off by a lackadaisical attitude toward your case. Similarly, the opposing counsel may grow impatient and frustrated by your constant extensions.
More serious consequences of continually asking for continuance after continuance include escalating the number of attorney’s fees that you will be required to pay. Adversarial parties may be hesitant to grant a request for a new court date without a valid reason, such as illness or pregnancy. If you keep racking up continuances, most particularly without a good reason, your adversary may ask for monetary penalties from you in order to cover their extra attorney’s fees due to your delay. They are already required to pay their lawyer enough money to handle your case, and should not be penalized further for any issues concerning your continued tardiness in representing your interests. Many attorneys across the country have billing rates of several hundred dollars per hour – consider how many hours they will be forced to spend on your case due to an inexcusable request for additional time, or worse yet, several requests for additional time.
One of the worst potential consequences of constantly requesting a new court date is that the judge will eventually stop granting them. While each state and at times even specific courts vary in judges, generally speaking, they view continuances as a waste of the court’s time and therefore, taxpayers’ money. While a chronic offender of illegally gaining additional time can expect to see harsh penalties, a steady stream of continuances can eventually lead to a judge citing you for harassment, or worse. Additionally, the judge may push the case to the next month’s docket, where they will have a new set of litigants to see. If so, your adversary will have another month to prepare, and the extra time you were counting on — and perhaps needing — to prepare for trial is lost.
A far more positive consequence of a well-supported continuance extension is that your case may actually benefit from a judge’s perception that you’re being unfairly pushed to trial despite your (or your attorney’s) best efforts to prepare. If the judge agrees that an extension is warranted, they are likely to look favorably upon your case and may even bend certain rules in the way that they would not otherwise for an opposing party. A continuance can also show the judge that your attorney is organized and willing to protect their client’s interests.
Serious consideration must be given as to whether or not a continuance is a good option for you. You may very well find that the best option for your case is to go to the courthouse on the date and time scheduled and present your case, no matter what happens. If your adversary will not allow you the time to adequately present your side of the story, you may have won half of the battle before you even step foot in the courthouse.
How to Ask the Court for a Continuance
If your attorney believes that your continuance request is appropriate or necessary, they will likely have you move the court for a continuance by filing a motion that will typically include their affidavit in support of the motion. This motion should be filed as soon as possible, so as to not seem like you are stalling on purpose, but it should not be filed until you and your attorney have determined how long you may need the court date to be extended. It is best to have an idea of when you are available prior to this motion being filed, as the court clerk will usually want you to provide proposed dates that the court can grant the extension.
If the motion is granted , the court will issue an order granting the continuance. It will then be up to you to follow all of the proper court rules regarding rescheduling your court date with the relevant court clerk. This can include scheduling with other involved parties, scheduling with the judge, and re-filing the motion. If this process is not followed properly, it could cause the court to ultimately refuse to grant a request for a continuance in the future. Even if your motion is granted, another party to the case can still request that the court not allow the continuance. If the party’s motion is granted, you will be required to appear before the court despite your prior request being filed.