2 minute read

Continuance

Grounds, DeterminationWaiver

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 discretionary 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.

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.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Constituency to Cosigner