Motion for Continuance Information

There comes a point in many lawsuits where one or the other of the parties gets set for a hearing or trial and is not quite ready yet. While you can always try and reach an agreement on delaying the case, sometimes a motion and order are required even when agreed.

The proper name for most of these requests to delay is a "Motion for Continuance".

Of course, there is no way to cover all of the points or the case law for all 50 states on this topic but there are a few things you need to know that apply everywhere.

1) Just filing a Motion for Continuance does nothing.

Unfortunately, horror stories abound where a pro se party filed a Motion for Continuance and then didn't show up for court and lost. The filing of a Motion for Continuance does nothing except place the issue before the court where it can be ruled on. However, filing the motion does not mean it is granted, the delay is allowed, or even that the judge is aware you are requesting a continuance. To achieve what you want you must make sure that the court actually signs an order granting the Motion for Continuance. Until that point, there is no delay.

2) You must file a proper Motion for Continuance.

Most courts require that the motions contain certain information. For instance, in one state the motion must state specifically that it is "not sought for purposes of delay" and it must be a "sworn motion" meaning that an affidavit has to be attached swearing that the allegations in the motion are true and correct. As we have pointed out over and over, if you are representing yourself you must be sure to read and understand the rules involved.

3) If  unsure, set a hearing on the motion.

While both parties can and often do agree on the continuance being granted, the court is not under any obligation to abide by the agreement. Because of this, if you are not sure whether the continuance has been granted or not, set a hearing on the matter and make sure that you get a ruling from the court.

4) File the motion AND an order.

One of the most common rookie mistakes is filing a Motion for Continuance without an order. While this differs from court to court, most courts do not draft the orders and if you want it granted you should draft one that gives you the relief you request and file it at the same time as the motion. If it is agreed, indicate it is agreed in the body of the order and the title (ex. Agreed Order for Continuance) and you may even want to have a place at the bottom for you and the other side to sign off as agreed.

5) Be sure you clearly state the grounds for the continuance.

Many courts will read through the motion, even if it is not agreed, and may grant it without requiring a hearing. This makes it extremely important that you specify the reason you are requesting the continuance in the body of the motion.

A Motion for Continuance is a valuable tool, but only if it is used correctly. Rarely will the failure to grant a continuance be a valid reason for reversal on appeal and never if the motion isn't ruled on or if the motion does not follow the rules.

Leave a Reply