motion to continue

Problem: You have a trial rapidly approaching, and you cannot be ready with all witnesses and proof by that time.

Solution: Make a motion to continue the trial.

Motion to Continue — How to Postpone a Trial that was Set too Early

A trial can be continued due to witness unavailability

If you have a crucial witness who cannot be available at time of trial, this is one reason to continue a trial. However, the court might feel that you could subpoena this person, and then they will have to work their schedule around your subpoena, which is a court order and very powerful. You must have tried early to subpoena the witness.

A trial can be continued if it was set too early

If your opponent asked too early for the matter to be set on the trial calendar, and declarations of disclosure have not been done, and you are within forty-five days of trial (the date when final declaration of disclosure is due under Family Code section 2015), it may need to be continued because the preliminary preparation for the trial has not occurred. If you have had plenty of time to prepare, and you were just too upset to prepare, this is not a reason that would prompt a judge to continue a case. You must show that you have tried diligently, and it was the other side that did things like delaying discovery, and then a court may continue your trial.

Vacations are a problem

Often, people plan pre-paid vacations, and then later they get a court date. Most courts are sympathetic to the idea that before you got the court date, you made vacation plans, and you will lose your money if you do not go. However, if you are contending that you are financially strapped, the court will look askance on an expensive vacation.

Motion to continue

You need to find out from the court clerk when and in what department motions regarding trial dates are heard. Such calendar-related motions are often heard separately from other motions.

You may lose motion

Just making the motion does not guarantee that it will be granted. You need to (1) move to continue the dates and (2) prepare vigorously for trial in case you lose the motion. Until your motion is decided, you must subpoena information to trial, and you need to serve subpoenas’ and prepare for trial as your motion to continue may well be denied. Never, never assume that a motion to continue will be granted.

If you want discovery reopened, you must convince judge

Usually, discovery is automatically cut off thirty days before the first date on which your trial is set to occur. There­fore, if the reason you need to continue the trial is that you are lacking in information, in your motion you must explain why you have failed to obtain the information in a timely manner and convince the judge to give you a second chance. This is not easy. Unless the judge specifically orders that discovery will remain open, it will automatically be closed even if the trial is continued. If you do not have counsel, this would be a point at which to contact Attorney Yeamans at (408) 867-8137 and obtain help in drafting a motion to continue the trial.

Must be before settlement conference statement is due

Clearly, your motion to continue, in order to do you any good, will have to be heard not only before the trial date and before the settlement conference but also before the settle­ment conference statement is due. If you prepare your motion to continue, and the court clerk cannot give you an early enough date for your motion, you may also talk to Attorney Yeamans about how to obtain an Order Shortening Time so you can obtain a hearing date which is early enough.

Law Office Of Robin Yeamans
Family and Appellate Law Specialist

Arthur Lin, Of Counsel
Speaks Mandarin

1484 Pollard Road #191
Los Gatos, California 95032

Office Hours: 10am to 5pm
(Mon - Thur)

Office Hours: 10am to 12pm
(Friday)

Phone: 408-867-8137
Fax: (408) 608-1933

Initial Consultation $500.00
Will Be Credited To Retainer


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