All About Continuances: An Overview of How Many You Can Get in Court

What is a Continuance?

Continuances are one of the most commonly requested forms of "legal relief," but how many of them will you be able to get before the court becomes frustrated with your dilatory tactics? To answer that question, we first need to make sure that understand what a continuance is and what it does. A Motion for Continuance is a request to the Court to move a previously-scheduled court date to some point in the future. The timeline that gets pushed back when a motion for continuance is granted is the date on which the case would have gone to trial. In other words, if you file a motion for continuance on November 12 and the date of the alleged offense is October 12, the trial date is a year away from November 12, not the date of the alleged offense. This means that the 30 days that you have to prepare a trial of the case has just turned into a year – what was the judge going to do with those 30 days anyway? He was probably just going to give them to you at the end of the trial as part of your "time served" on misdemeanor cases. Obviously, a longer period of time before trial is beneficial to the Defendant – you get more time to prepare , and this is the goal we are generally trying to accomplish with a motion for continuance. Or, are we? By doing so, you are giving up the right to a speedy trial, which is also guaranteed to you by the Constitution – bear in mind that nobody who has suffered the consequences of our criminal justice system thus far gives a rip about it being "speedy" enough for your tastes. What’s more, the longer the delay that you are requesting, the more costly (in legal fees and court costs) your case usually becomes. Remember, motion for continuance requests and hearings are not free, and cannot even be waived. You must have a hearing on the motion. Additionally, you are now going to have to pay for a new set of attorney’s fees to prepare to trial again (for the same amount of work as they did for this trial). Finally, the longer you’re out on bond, the more likely it is that you may be arrested for new offenses, or perhaps get charged with violating your release conditions on this case by the prosecutor’s office. If you are doing something illegal during the interim, how likely is it that a judge is going to get your case tried quickly or at all?

The Legal Basis for a Continuance

There are several legal grounds for requesting a continuance in court. Unfortunately, this can often make it difficult to know whether or not you should get a lawyer to help you make the request. These grounds include:

illnesses or emergencies that prevent you from attending court
scheduling conflicts with business obligations, family matters, travel plans, vacations or a pending examination
events that require your presence at a legal proceeding other than the one you’re facing
scheduling issues with your attorney
conflicts with other court proceedings
the need to gather or obtain evidence
the inability to swap dates with the judge or other parties involved
programming conflicts with a jury panel
conflicts that arise from a judicial branch calendar

The bottom line is that there are many valid reasons to request a continuance. A false assumption is that a continuation is only used if you’ve been accused of a crime or have some type of penalties to face. This is untrue, and as you can see, administrative, civil and criminal actions can all be the grounds on which a continuance is requested. Of course, this does not mean that a continuance will be granted.

How Many Continuances You Can Get

In most jurisdictions, there are no set limits as to how many times one can seek a continuance. In some courts, there may be an unwritten rule or pattern of practice involving the number of times a party can seek a delay of a court date. If, for example, a certain court almost always grants two continuance requests by the plaintiff, but rarely a third, then a lawyer can probably feel confident that he or she is going to get the second continuance request granted, but might not want to offer the same legal argument for the third request. The court may ordinarily look in a different way towards the third request than the second request.
In short, there is no clear cut answer as to how many times a single party can request a court date be pushed back. It will depend on the individual court. There is usually a presumption in favor of granting a first request, but it might not be the case after that.
As an example, in some courts, a specific party might be barred from any further request for a continuance, regardless of the reason. In that instance, the party seeking the continuance would have to persuade the judge to recuse themselves from the case so that a new judge could hear the cause of action and how it might be affected by a later continuance request.

Factors the Court Considers When Deciding Whether to Grant a Continuance

When determining whether to grant a motion for a continuance, the court will consider a variety of factors. While case law does not provide a concrete list of these elements, courts will consider whether: 1) there has been a previous request for a continuance, 2) the parties have failed to maintain proper diligence with respect to the trial preparation, and 3) the particulars of the case itself warranted a request for a continuance.
In Virginia, both Supreme Court Rule 7:4(b) and Rule 3A:9(e) require that the requesting party demonstrate that "no material witness will be able to attend because of death, sickness, imprisonment elsewhere or other unavoidable cause . . .." Pertaining to this subsection, Virginia State Bar Rules 1.3 and 1.6 also require that attorneys make reasonable efforts to ensure that that the client’s objectives are carried out, including maintaining communication with the client. This means that if the attorney has been adequately communicating with the client about court dates, and if the client is aware of the court’s requirement that the client provide a witness to court, the court is unlikely to grant a continuance for issues related to unavailability.
Aside from the actual factors that will be weighed in determining whether the court will grant a continuance, other factors may impact how the court views the request for a continuance. For example, a judge may be more likely to grant a continuance if the judge him or herself is busy within that period. With this particular factor, if a judge has multiple trials scheduled back-to-back, the judge may be unhappy about having to preside over multiple weeks of trials with little more than weekends providing an opportunity for an adequate rest.
Generally, if it seems that the trial could have been prepared if the lawyer or the client had better communicated prior to the date of the trial, the court may likely be inclined to deny the motion.

The Effects of Having Multiple Continuances

The number of continuances in a case impacts the case in many ways. First, if you are even still represented – usually at least one side has ditched counsel by this point – the court system is now on notice that you are not the most diligent party. The court knows you’ve created the mess you are now seeking to fix. For the parties, this can mean an increased cost of litigation, or alternatively a loss of rights for whichever party sought the last writ of continuance. A month’s delay without some motion to convince the court you need the time can mean that you’ve forfeited your right to a speedy trial. And so on.
Really though, the most important problem with multiple continuances is that they tend to make people seem less responsible. While no judge will likely ever say that this is why a party lost on a motion, if they’ve felt that you’ve played fast and loose with the Court’s time, they are less likely to sympathize with your current legal argument. It’s often hard to perceive judges as having human reactions to evidence presented in court. But take it from a lawyer who actually has to play her cases a bit differently based on how a particular judge feels about some of my motions: at least on some level that’s true.
Plus , judges have other cases they want to try, and other cases they want to finish. If a case hasn’t gone to trial in five months but was set to go to trial on a Monday, I’ve seen judges simply say that they were going to finish up their docket this week but they would be back again on Monday. They might even tell everyone in the hallway about the judge that doesn’t really show up on Fridays. That judge wasn’t going to stay on the bench over the weekend to finish our trial; in fact, they were going to take Monday off. It’s in the code that they aren’t supposed to do that, but it doesn’t mean that they don’t get around it now and then. And can you blame them? No. They’re stuck dealing with the lack of professionalism from all involved.
In short, if you want to win your case, and you’re going to have to suck it up when it’s hard, if you’ve already gotten the benefit of a shortcut in the past it’s unlikely that the judge will want to give you another bite at the apple. So be reasonable with your motions because unreasonable use of court time will hurt your case.

How to Limit the Number of Continuances

The best way to avoid continuances is to prepare the case properly and provide ample notice to the client if the case needs to be continued, and to communicate your position to the court early in the process so the court is on notice and does not expect the case will be delayed. Additionally, remediation or resolution of issues that could lead to a delay is prudent. For example, having all witnesses present for the scheduling of depositions is important. Continuing to attempt to schedule depositions of witnesses who are out of state and unwilling to travel is a poor decision. Getting those depositions completed early is, of course, the best option. Also, if there are issues about whether a trial date is obtainable, it is important to timely file a motion before the court if there are scheduling issues at the courthouse. Also, have the administrative office of the court contact you with an available date well in advance. In my experience, each docket has a preferred timeframe for trial. So, by knowing which courtrooms will take a criminal or civil docket on a certain date is helpful. If there is any indication that the case may need to be continued, let the judge know before the date approaches.

When You Should Object to a Request for a Continuance

Continuances may be granted for a variety of good reasons, and by a simple request in writing or orally by the lawyer in court. In most situations, opposing a continuance (in the civil context) will very unlikely be a good strategy. In other cases, opposing when it makes sense to do so might be the right call.
For example, if there are multiple individual Plaintiffs in a case, and one or more of those Plaintiffs may not want to participate in costly or lengthy discovery, they may want the case settled or proceed to trial quickly. In that instance, those Plaintiffs – properly represented by counsel – might oppose or object to a continuance. It’s definitely that case that all of the Plaintiffs would oppose a continuance, or none of them, so opposing a continuance in general doesn’t make any sense in that situation.
By way of yet another example, if your case is five years old and you have completed all of the discovery that was requested or ordered by the Court, and there is no reason that a continuance would make sense, you should object to a continuance. In this instance, you have called the trial court’s attention to its own backlog , and you might receive a very positive response because the trial court is likely just as frustrated as you are.
For the most part, the question of whether to oppose or disagree with a continuance request is going to be pretty simple to answer: no.
An exception might exist if the other side has been given a large number of continuances, or if the Court and/or jury have expressed frustration with the parties who have not been prepared for trial on multiple occasions. In that situation, a slight amount of delay may not matter too much, but if the continuance is going to cause the calendar to become even more impacted, then it definitely can become a problem.
It may, for example, be better for your case if a jury poll is quick, and it may be better for the prosecutor’s case if a jury takes their time deliberating carefully. Yet, if you currently are without a trial date in a civil matter and you on the verge of entering a settlement or an agreement to mediate, a delay could be catastrophic for you.
So, depending on the circumstances, opposing a continuance might be wise when it is strategically advisable, but unless you are pretty sure it is the right thing, it’s usually best to leave it up to the Court.