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Posted in Newsletter on August 24, 2022   |  by Gary Burger

How Not To File a Continuance

I had a trial set in a week in July that I also set a family vacation.

My client (and friend) had been sued and filed a counterclaim against the other side. Roofing project gone wrong – a homeowners nightmare.

So in April, I asked for a continuance and went down to southern Missouri to argue it. Defendants objected. We looked at other dates, but moving the trial would not work with the defendants and the court schedule. The court denied my motion.

So we had to get Genavieve Perino up to speed to try the case. She did a great job, and we were loaded for bear to try the case.

So much so, that our part of the case settled. The insurance company offered a lot of money to settle our counterclaim. Big victory.

But what happened next was a shocker. They lawyer for the initial claim against my client called me at 4 pm on Friday with the trial to start on Monday morning. He got the judge on the phone: “Judge, they just settled with my client and my co-counsel and I need a continuance.”

Me: What? But:

  • It was your client and co-counsel who settled, how can this be a surprise? Your lack of communication with your client or co-counsel for the counterclaim does not constitute good cause for a continuance
  • You did all the work in the case and took the depos – how can you not be prepared?
  • People settle out all the time right before trial – or during trial. This happens.
  • Remember when you wouldn’t continue this trial in April? Well my client spent money to switch lawyers and Genavieve worked really hard to get ready, and you’re gonna entertain a phone call the Friday afternoon before a Monday trial – this is ridiculous.
  • We have experts prepared and evidence ready.
  • You (other lawyer) spent the last week trying to settle with me and asking me to try the counterclaim, as the other lawyer would not be ready and you were the lead trial lawyer. You literally told me that. Now, I did it the other way and somehow you need a continuance?
  • What about our costs for trial prep? You have gotten a bunch of prior continuances.

Judge: "This is a hard decision but the continuance is granted."

Me: silence but thinking – I am grateful I didn’t cancel my vacation.

Digesting this afterwards and looking into it, I found that this was the plaintiff’s counsel fourth Motion to continue the trial date.

Pursuant to Mo.R.Civ.P. 65.01 and R.S.Mo. § 510.080, the court may continue a civil action “[f]or good cause shown.”

Plaintiff’s oral Motion for Continuance violated Mo.R.Civ.P. 65.03, which requires that a continuance application “shall be made by a written motion accompanied by the affidavit of the applicant or some other credible person setting forth the facts upon which the application is based.” This rule is based on a century of precedent in R.S.Mo. § 510.090, which was also violated.

Oh well. We will reset the trial and hopefully get a great result. I will keep you updated.

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