By Randy Johnston
Have you ever had a trial setting you weren’t ready for but also were not really even worried about? It’s a first setting on a big case and the case is only a year old. The case probably won’t even be reached, right? After all, there are older cases ahead of it on the docket, including one with a special setting. Besides, the opposing lawyer is just as unprepared as you are and he has two other cases set that same week in other courts, both of which are older than this case. Plus, the judge is a former plaintiff’s lawyer’s/defense lawyer so he knows and is sensitive to the burdens of a trial lawyer with more than one case, and besides, you gave him a healthy donation before his last election.
Many of us have been in a position that had at least some of these facts and, if we are honest with ourselves, we probably took some comfort in our conclusion that we had nothing to worry about from this trial setting based upon these facts. So, what do we do when the docket craters, all the cases above you settle, the two cases opposing counsel had in other courts get continued, and his client won’t let him agree to a pass or continuance? Oh yeah, and the judge is at a judicial conference and his docket has been assigned to a series of three visiting judges so that, even after a strike by both sides, there will still be a judge to try the cases and clear the docket.
Well, what we do is file a motion for continuance. The smart lawyer will pull the rule book and read Rules 251, 252 and 253 before filing the motion. After all, the last thing you now need is to have your motion denied because it failed to dot every “I” I and cross every “t” in the rules. One of the things you find when you read these rules is that they are written with a view towards court denying them, as opposed to granting them. So, here are some of the things the rules say about motions for continuance under these circumstances:• The motion for continuance shall be not granted unless it shows “sufficient cause” and is supported by an affidavit;
If the “sufficient cause” is a lack of certain testimony, the affidavit must show: the missing testimony is material; the nature of the materiality; the lawyer exercised due diligence to try to get the testimony; the exact “due diligence” used by the lawyer and why it failed; and if this is not the first motion then, the testimony is not available from another source. If the “sufficient cause” is a lack of a witness (you figure out whether what you are missing is a witness or testimony), the affidavit must show: the name and address of the witness; and what you expect approved by this witness (which seems a lot like a lack of testimony).
Although its importance is often overlooked, a motion for continuance has one other mandatory requirement, the absence of which results in automatic denial of the motion. The affidavit and motion must state that the continuances not sought for delay only but so that justice can be done. And the affidavit supporting a motion for summary judgment is almost always from the lawyer handling the case. After all, how could the clients swear, under penalties of perjury, to these things? So, what happens when that motion for continuance is denied by the visiting judge assigned the case? You are now going to trial under circumstances where justice cannot be done, if one believes your affidavit.
When you lose that case because of a lack of preparation and the lack of evidence, the resulting judgment against your client is the product of a lack of justice, if one believes your affidavit. So, when your client sues you for malpractice, what do you think will be plaintiff’s exhibit number one? My bet is on your motion for continuance and your affidavit where you have sworn that you are not ready for trial, even though you have known about this trial setting for months and where you have sworn that your lack of preparation assures that justice cannot be done for your client.
All of us are forced to file a motion for continuance from time to time. We are also all encouraged by the Lawyer’s Creed to cooperate with opposing counsel in scheduling matters and avoid games of “gotcha.” The filing of a motion for continuance should, however, never be routine or taken lightly. They should never be filed the week before the trial setting, when denial of the motion leaves us no opportunity to cure. The days when the granting of a motion for continuance could be taken for granted are gone. And the consequences of filing a motion for continuance that is denied are considerable.