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Sunday, August 10, 2014

Filing a Continuance -- I can't make it, what do I do?

What to do when you cannot attend a court hearing.

If you do things out of time you're weird.
Robyn Hitchcock

No truer statement was ever uttered when it comes to legal proceedings. Changing the calendar is certainly a problem, but if approached properly, it can be done with a minimum of trouble. Approached poorly, and a calendar change will be denied.

Asking for a continuance falls into two categories.
  • A. Non-substantive hearing (frequently called a "status" hearing)
  • B. Substantive (also called "merits" hearing) court date

Generally, a motion to continue must be submitted at least two weeks prior to the impending date. You should contact opposing counsel and seek consent for the continuance. As a rule, a merits hearing will require consent to move or a substantitve reason (i.e. illness, or the attorney has another trial on that date); a status hearing can usually be altered merely at the request of either party.

As with all motions, be sure to include a certificate of service statement. Additionally, every motion should include certification that you have conferred with opposing counsel in good faith and he/she either agreed or did not agree to the proposed motion.

Finally, where your Court requires a Memorandum on Points and Authorities to be included with every motion, you can usually include the following two points, and it will be found sufficient for your memo:

1. The Rules of Civil Procedure and the Local Rules of this Court.
2. The record as thus far developed in the case.

One interesting variation on this is criminal procedure. Often, the calendar control for criminal court can, with the consent of the prosecutor, be modified through the submission of an email to the clerk of the particular judge hearing your case. Judges appreciate the steamlined nature of working with parties sans paper, and it makes coordination between the prosecutor and the defense much faster. Be sure to check with the prosecutor on your case to see if this is a possible avenue. A sample email might read:

With the consent of the prosecution, I am writing to request the status hearing, scheduled for 12 September 2014, be changed to 25 September 2014.

The body of a sample motion to continue (this appears beneath the caption of the case):

[Defendant’s name], through counsel, moves this Honorable Court to grant [him][her] a continuance and reschedule [his][her] case from [Present trial date] to be reset at the [Date of next] docket call.

The basis for this continuance is that the undersigned will be [whatever prevents the attorney from being there].

Counsel has discussed this with the prosecutor on ______ (date) and [received/did not receive/obtained no answer] consent for this motion.

[name of client]


Alternative format:

Comes now your [Claimant, Petitioner, Plaintiff, etc.], [client], and through counsel requests this Honorable Tribunal grant a continuance for the hearing scheduled for 13 May 2014, and in support thereof submits as follows:

1. Claimant's counsel is in trial on the 13th. I have provided a copy of the scheduling order with this motion (See, Exhibit A).
2. Counsel sought the consent of the opposing party, namely [opposing counsel]. [Counsel] did not return our contact.
3. Due to the immediate nature of this hearing, and the unavoidable conflict a trial on the 13th creates, [client]requests that the hearing be rescheduled for the first week of June. Preferably 02 - 04 June 2013.

Be sure to always copy the prosecutor on every email you send to the Court.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 Charles Hatley, Esq.
Leigh Snyder, Esq.

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