Knowing When a Continuance is Warranted

To keep the judicial system running smoothly and effectively, continuances are often frowned upon, and in criminal cases, the law allows a defendant the right to a speedy trial. In civil cases, several issues can delay a case and warrant a continuance. Defendants do however try to use it to buy time, and you are advised to use a reputable firm of malpractice lawyers in Michigan to ensure that you are not taken advantage of to the benefit of the defendant.

What is a continuance?

A continuance is a court order to delay a case (postponement or adjournment) and reconvene all parties at a later date. The trial judge through the court has the discretionary power to deny or grant a continuance, but it is subject to some statutory restrictions.

Either the plaintiff or the defendant can request a continuance, or the court can of its own motion order a continuance. It can also occur by operation of law due to unanticipated circumstance, for example, the death of a presiding judge.

How does the court decide on a Motion for Continuance?

Before ruling on a motion for continuance, the court has to examine all the facts of the case, as well as the circumstances leading to the motion:

  • Whether the party applying is acting in good faith
  • The purpose of the postponement
  • The necessity for the continuance (does adequate grounds exist)
  • What probable advantage the applicant could enjoy due to the continuance
  • If it could prejudice the opposing party’s rights

If there are multiple defendants in the case, a motion for continuance granted to one of the defendants will automatically apply to all of them.

When is a continuance warranted?

At the beginning of a trial, the judge is unlikely to grant a continuance to the plaintiff as they should have prepared adequately before filing the suit, and will only do so in exceptional circumstances, however, the court may grant the defendant a continuance to adequately prepare if warranted.

If the plaintiff did not state a Cause of Action in their filings, they are not entitled to a continuance, but the defence can file a motion to dismiss at this point and would likely be granted such.

In civil cases the following situations provide adequate grounds for a continuance:

  • Service of process not made upon a defendant – if notice was served late or not done appropriately, the defendant has to be given a chance to defend himself.
  • Delay in filing pleadings – late filing of pleadings on either side will warrant a continuance for the opposing party, as they must be given reasonable time to prepare for a response in court.
  • Absence of witness – the court will require proof that the witness could not be found in time for the court date, state their current address and convince the court that there is a reasonable expectation for them to be found in short time.
  • Absence of evidence – the applicant, would have to provide proof that the evidence is material to the case, and that due diligence was used to procure it (for example, issuing a subpoena).
  • Accidental loss or destruction of documents or papers relevant to the case and the applicant must show they were not responsible.
  • Absence of counsel – absence or incapacity can be grounds for a continuance but is not automatically granted. The party must show a good faith reason.
  • Absence of party – issues such as illness or disability may be considered legitimate reasons for the absence of a party, however, the court will evaluate the number of prior continuances and if the reason was voluntary (such as missed flight or intoxication for example). Feigned illness to delay will have the applicant be held in contempt.

  • Surprise – a request to join other parties to the plaintiffs or defendants may warrant a continuance, as well as any surprise issues that arise during the course of the trial. Both plaintiff and defendant should have adequate time to prepare for big surprise changes in the proceedings. They have to be legitimate, for example, late discovery of evidence or a new witness coming forward.
  • Pendency of action – if the outcome of another proceeding could influence the current proceeding (vicarious liability).
  • Change of counsel – does not automatically warrant a continuance, and if used for the purpose of delay will be denied.
  • Lack of preparation – if the applicant is not upholding its duty to the court, for example, through delay, negligence in preparation, or ignorance the motion will be denied. Warranting a continuance requires diligence and equitable reasons.

If you live in Michigan, and you are unsure about continuances in your case or require the assistance of an attorney in filing your case, call Cochran, Kroll & Associates, P.C at 1-866-MICH-LAW (1-866-642-4529) for a free consultation.

Nikole has a special interest in medical-legal issues and holds post-basic degrees in medical law and business. She has developed quality improvement and safety plans for many practices and facilities to prevent medical-legal issues and teaches several courses on data protection and privacy, legal, medical examinations and documentation, and professional ethics. She has been writing professionally on legal, business, ethics, patient advocacy, research and medico-legal issues in articles, white papers, business plans, and training courses for over thirty-five years.

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