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Continuance - Grounds

party action court illness

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.

Continuance - Determination [next]

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