Many legal terms sound like a different language impossible for non-lawyers to translate, but "continuance" is not one of them. A continuance means that a scheduled trial or hearing is continued until a later date. There are as many reasons for continuance requests as there are snowflakes in Alaska, and while some justify postponing a court proceeding, many do not.
Few courts impose hard and fast rules defining how many continuances will be allowed in a case. The rule most often applied is the rule of reason, with the court considering in turn the merits of each motion for continuance.
Doing the Continuance Dance
A continuance is a court order postponing a court appearance before or during a trial. In a civil case, any party can ask the court for a continuance. In a criminal case, both the prosecution and defense counsel can seek a continuance. Sometimes the court itself orders a continuance on its own. And sometimes continuances even occur by operation of law, such as when an appellate court doesn't get a chance to hear a particular appeal that term, so it continues it until the next term.
Who decides whether a continuance is granted and how do they decide? A continuance is a matter left to the sound discretion of the judge, which means essentially that the court grants or denies a request for continuance as it sees fit. Most jurisdictions require that motions for a continuance be made in writing, with opportunity by the other parties to oppose or respond to the motion. The court weighs the circumstances given for the continuance and the reasons presented against it, and makes a decision.
In Virginia, for example, continuances are granted only "for good cause." Good cause is defined as follows by Virginia courts: "Good cause exists when the need for a continuance is unforeseen, is not due to a lack of preparation, is brought to the Court’s attention in a timely manner, and does not unduly prejudice the opposing party."
How Many and How Long
The court has the discretion to grant or deny continuances, and there is usually no set limit to how many will be allowed. However, a court will look closely at successive continuance requests by the same party since it raises the issue of whether they are sought solely for delay. The repeat applicant must take pains to establish that the second postponement is critical to the integrity of the judicial process and the rights of the parties.
The amount of time trials can be delayed varies among states. Some have no set limits, while others do. For example, Virginia rules specify that no party can request a continuance exceeding 60 days. In criminal matters, the defendant's right to a speedy trial must be considered.
Grounds Supporting Continuance
Courts grant continuances only if valid reasons justify the postponement of an action. Certain grounds are frequently held to justify a continuance. They include:
- If all interested parties have not appeared, a continuance is granted to bring them into the action so that they may present their side of the case
- If a defendant hasn't been properly served with court papers, a continuance is granted to complete service
- If there is a delay in filing legal papers which surprises the opposing party, a continuance is often granted to give the opposing party time to prepare
- If papers are accidentally destroyed, a continuance is granted if they cannot be readily replaced
- If another action is already pending in court that relates to this one or affects the same parties about the same issues, a continuance may be granted to await the outcome
- If a party is seriously ill, a continuance can be granted in the interests of fairness
- If the judge falls sick, the matter is continued until she recovers
Note that lack of preparation caused by inexcusable negligence is not grounds to continue a matter. Likewise, change of attorney is not necessarily grounds for postponement, and a continuance will not be granted if it is a delay tactic.