Tuesday, August 2, 2016

Can I get a Continuance?

And interesting motion for continuance crossed my desk recently. It was a case in which the employer carrier had moved for a continuance earlier in the year. Now the claimant was seeking a second continuance. The motion was brief and provided little detail or explanation. It essentially said that the claimant needed additional time for discovery, and that the employer/carrier did not object.

Of course, the motion was denied as being statutorily insufficient. I am surprised by how often attorneys express dismay upon being reminded that any motion by the injured worker, for a second continuous, must be accompanied by a waiver signed by the injured worker. Why? Simply stated, because the statute says so Fla. Stat. 440.25(1). 

But "why" can be a different analysis also. "Why" might also be answered with the legislature intending that injured worker's claims be adjudicated within a reasonable period of time. The result of that intention is a statutory definition of when trial shall occur, within 210 days from the date of filing the petition. 

And when that time frame cannot be met, there appears to be an intention that the injured worker knows about motions to continue. It is likely that they always have known. But the waiver makes sure that they know and that their understanding is documented. 

Another element of the motion, was the statement that additional time was required for discovery. That may always be true when a continuance is sought, and may be as persuasive as "because this motion was typed." See, each statement: "I need more time" and "this motion was typed" are true. But is either persuasive? That more discovery is needed, alone, also does not satisfy the statutory requirement found in Fla. Stat. 440.25. The statute requires that the circumstances requiring a continuance of the trial be demonstrated to be beyond the parties' control.

From grade school we remember that one cannot show up to class, look the teacher in the eye and say "I cannot turn in my homework, I need more time." This never worked in school, and it is unlikely to work in seeking a continuance. The statute requires more than "I did not get my homework done." The statute requires a demonstration that there is a rational, reasonable reason that the homework is not completed. And, that reason must be demonstrated to be beyond the person's control.

"Hello Professor, I did not get my homework done last night because I was binge watching Psych on Netflix;" continuance likely denied.

"Hello Professor, I did not get my homework done because I became distracted by my other classes, and did not pay sufficient attention to this one;" continuance likely denied.

"Oh Professor, I finished my homework last night and left it on the kitchen floor. You're never going to believe this, but my dog ate my homework off the floor;" continuance likely denied.

Know your deadlines. Do your homework. Put it in a safe place. The circumstances to justify a continuance need to be beyond the attorney failing to do his or her job. Good examples I have seen over the years include: 

"a family emergency arose when my ___________ passed away suddenly yesterday. I have to be out of town for the funeral and cannot attend the trial." Continuance granted

"My paralegal was driving to the office this morning, with my file he was organizing last night, and he was in a serious motor vehicle accident. My entire file, notes, and exhibits were destroyed in the accident. I cannot proceed with trial today." Continuance granted

"We scheduled the deposition of Dr. _________ to occur a month ago. She presented at the deposition, and was sworn. During examination, the hospital paged her with a traumatic emergency, and she left without further comment. Despite our best efforts, the earliest opportunity to complete his deposition is two weeks from today, and we need a continuance to accommodate the completion of this testimony." Continuance granted.

What are the similarities in all of these instances? The similarity is that something has occurred, which is beyond the control of the moving party. Something has happened beyond "we did not do our job, and we are therefore not ready." There may be a big difference between "after the pretrial last month we tried to schedule Dr. _________ for deposition and she is not available before trial" and "we started trying to set Dr. ________ for deposition when this claim was filed 5 months ago and she is not available before trial due to her other commitments."

Competent counsel, seeking a continuance, will perform several important tasks. First, he or she will read Fla. Stat. 440.25. Second, he or she will draft a competent motion, Rule 60Q6-115(1). Third, if representing the claimant, and if there have been any prior continuance, counsel will obtain a signed written waiver, from the worker, acknowledging and agreeing to the second (or third, "additional") continuance. And finally, Counsel will communicate with opposing counsel pursuant to the rule, 60Q6-115(1), and determine if there is an objection to the motion. Whether there is or is not an objection, that should be stated in the motion. 

Explanation helps. Details matter. Tell the whole story. It does not require pages, a simple paragraph with salient facts should do the trick. 

As an aside, the time to do the job right is when the Motion for Continuance is filed. Counsel will be efficient and effective when they read the statute and rules, prepare complete pleadings, and file as early as practical. Many Florida judges are regularly responding to motions the day they are filed, but putting off to the last minute expecting such response times could place you in a tough position as trial approaches.

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