Continuance

In American procedural law, a continuance is the postponement of a hearing, trial, or other scheduled court proceeding at the request of either or both parties in the dispute, or by the judge sua sponte. In response to delays in bringing cases to trial, some states have adopted "fast-track" rules that sharply limit the ability of judges to grant continuances. However, a motion for continuance may be granted when necessitated by unforeseeable events, or for other reasonable cause articulated by the movant (the person seeking the continuance), especially when the court deems it necessary and prudent in the "interest of justice."

The absence of counsel is a recognized ground for continuance of a civil case, and is in the discretion of the court to grant or deny.[77][78]

Illness, death or withdrawal of counsel in civil cases are also reasons for granting a continuance.[79]

Absence of witness or evidenceEdit

A civil case may be continued due to a lack of evidence[80] or witnesses.[81][82] An affidavit is usually required to explain the issues involved in the request for a continuance. An affidavit for continuance that did not state the name and address of an absent witness and what the defendant expected to prove by his testimony failed to comply with the requirements of the statute, and denial thereof was not an abuse of the trial court's discretion.[83]

If all the requirements of an application for a continuance are met and described in the affidavit submitted to the court, and it is not being done for purposes of delay, it may be an abuse of discretion to deny a continuance.[84][85]

To justify a continuance of a civil case due to the absence of evidence, the missing evidence must be shown to have relevance to the case.[86][87]

The missing evidence must be material to some issue in the case.[88]

Generally, in a civil case, a continuance sought due to absence of evidence will not be granted unless reasonable diligence has been used to procure it.[89] The question of diligence is a matter of fact, addressed to the sound discretion of the court.[90]

In some jurisdictions, the issuance of a subpoena is evidence of due diligence.[91]

In many jurisdictions the service of a subpoena by itself, is insufficient to entitle a party to a continuance because of the absence of a witness.[92][93][94][95]

To demonstrate the absence of material evidence in the form of papers, documents and the like, it is usually necessary to show that a subpoena duces tecum has been issued.[96]

A continuance in a civil case can be granted because of the death or illness of a party to the action.[97]

Absence or incapacity of counselEdit

The absence of counsel is a recognized ground for continuance of a civil case.[98][99]

A court is not required to grant a postponement merely because a party's attorney is absent.[100]

The court may require that the party seeking the continuance to show the reasons that the counsel is absent.[101][102][103][104]

Absence of partyEdit

The absence of a party may be grounds for a continuance of a civil case.[105][106][107][108] Factors considered legitimate in an absence are illness or disability.[109][110][111]

It must be determined by the court whether the absence of a party or witness is material to the case, and whether there have been prior continuances or delays.[112]

Absence because of voluntary intoxication is not a proper reason to continue a civil case.[113]Absence because of mental illness may [114] or may not be a legitimate reason for a continuance of a civil trial.[115]

SurpriseEdit

A party may have a good ground for a continuance of a civil case when through no fault of their own, it is taken by surprise by the conduct of its adversary and would be unjustly prejudiced if forced to proceed without being given an opportunity to prepare to meet the new situation.[116][117]

Surprises include an amendment or substitution ofpleadings.[118] Lack of time to prepare for a new complaint is a reason for a continuance.[119] If the amendment requires the production of new evidence, a continuance may be granted.[120]

Other groundsEdit

A continuance may be granted because more time is needed to prepare for trial.[121]

Where a defendant in a civil proceeding is entitled to have interested persons joined as parties (added to the list of plaintiffs or defendants in the case), and it is shown at the trial that those persons have not been included in the petition, he is entitled to a postponement of the trial until they can be joined.[122] A civil case may be continued to allow proper service to another party.[123] A pending, intervening proceeding may be the legitimate reason for a continuance.[124]