Legally Speaking: Anything For A Continuance

John G. Browning May 11, 2010, 5:27am

When a lawsuit is filed, it may be anywhere from nine months to several years before the parties finally have their day in court.

Depending on how backlogged the court's docket is, and how quickly both sides can be prepared to go to trial, a case may languish in the legal system far longer than a litigant might expect. Sometimes, the parties or their lawyers simply aren't ready for trial, or some other pressing matter creates a schedule conflict.

When this happens, lawyers for one side or the other ask the court's permission to move the trial setting by filing a motion for continuance.

Motions for continuance usually cite the reason why the trial setting needs to be moved: a death in the family, a medical emergency or the unavailability of a critical witness, for example. However, some reasons are more unusual than others.

Take the motion for continuance filed in the fall of 2006 by Arkansas lawyer John Hall, for example. Hall was representing one Bobby Junior Cox in a criminal case involving allegations of running a crime ring centered on illicit drugs, sex and "abuse of an inmate-labor program." Cox's codefendants included a former police chief and his wife.

Cox's lawyer was concerned that because the trial's scheduled Nov. 8 start date was just before the official beginning of deer season, his client would have a hard time getting a jury of his peers. Accordingly to attorney Hall's motion for continuance, most deer hunters would simply "refuse to show up" since they would "rather be hunting than stuck in a courtroom in Cabot, Ark."

Mr. Hall went so far as to cite statistics from the Arkansas Game and Fish Commission (including the fact that the state had issued 273,128 hunting licenses the year before) in support of his argument that deer season would interfere with jury selection and result in Mr. Cox being denied his Sixth Amendment right to be tried by a fair cross-section of the community.

Sometimes, the motion for continuance may veer off into the realm of politics. In March in Tuscaloosa County, Ala., defense attorney Travis Wisdom was forced to seek a continuance when a key witness, county engineer Mike Henderson, had to leave the country for a family medical emergency.

It seems Henderson's father, a resident of Canada, was scheduled for open-heart surgery. As Mr. Wisdom pointed out, because of Canada's universal healthcare system, the elder Mr. Henderson was only given a few days notice of the approval of the surgery by the Canadian government, leaving family members to scramble.

Wisdom's motion for continuance warned that such last minute notice was what Americans would soon experience "due to the socialistic and unconstitutional healthcare bill passed by our Congress and signed by our President."

On other occasions, motions for continuance become a forum for team pride rather than a political soapbox.

Back in 2007, in the case of Fay Thibodeaux Danos, et al. v. Avondale Industries Inc. et al., the New Orleans Saints' advancing in the NFL playoffs was cited as a compelling reason to move the lawsuit's trial date. The Court agreed.

Based on this, you can well imagine how few cases got tried in early 2010 when New Orleans not only made the playoffs, but went all the way to the Super Bowl and won.

Team pride ran just as deep for Louisiana attorney Stephen Babcock, who filed a motion for continuance in the Joseph Harrell v. Fred Spencer and Imperial Casualty Insurance Co. case in late 2007.

Babcock pointed out that his beloved LSU Tigers were scheduled to play the No. 1-ranked Ohio State Buckeyes on Jan. 7, 2008, in the BCS National Championship football game – the same day trial was to start.

Babcock argued that LSU's presence in the "aforementioned contest of pigskin skill" was a historic occasion and easily satisfied Louisiana law's requirement of "good ground" for a continuance; in fact, he was hard-pressed to think of a better reason. Besides, he noted, even the opposing counsel in the case were LSU fans.

Babcock got his continuance – Geaux Tigers!!

School pride was also the basis for a number of continuance motions filed in Alabama courts regarding trial settings that would have otherwise conflicted with the most recent BCS National Championship game on Jan. 6 between Alabama's Crimson Tide and the University of Texas Longhorns.

One such motion for continuance was filed by attorney Jon Terry in Jefferson County, Ala. Terry cited a number of supporting reasons: his travel plans to Pasadena for the big game, the judge's plans to be there for the game, many witnesses' plans to attend the game, and of course the "magnitude of this event and its impact on this state . . . [which] is an achievement of such a magnitude that all involved in this litigation should want everyone to fully participate in this achievement."

Terry ended his motion with a hearty "Roll Tide!" and a fervent wish for the Longhorns to be defeated. Terry got his continuance, as well as his wish (as much as it pains me as a loyal Longhorn to acknowledge it).

Of course, sometimes the reasons given for seeking a continuance have more mundane roots, but can be just as important.

Florida attorney Susan Rosenblatt filed a motion for additional time in an appellate case pending before the Florida Supreme Court in 2006. Her reason?

In the midst of preparations for dealing with a hurricane approaching south Florida, Ms. Rosenblatt also had to contend with evacuating and caring for her King Charles Cavalier spaniel and the seven puppies the dog had just given birth to.

Seems like a good reason to me – but just to be on the safe side, maybe Ms. Rosenblatt should have offered to name one of the puppies after the judge.

John Browning is a partner in the Dallas office of Thompson, Coe, Cousins & Irons, LLP. He may be contacted at:

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