NCJ Number
49330
Journal
Cleveland State Law Review Volume: 21 Issue: 3 Dated: (SEPTEMBER 1972) Pages: 118-140
Date Published
1972
Length
23 pages
Annotation
JUDICIAL DECISIONS AND COURT PRACTICES RELATED TO THE GRANTING OF CONTINUANCE ARE REVIEWED, AND GUIDELINES ARE FORMULATED TO PROVIDE A SOUND BASIS FOR COURT POLICY WHICH WILL REDUCE DELAY WHILE ENSURING FAIRNESS.
Abstract
THE CONTINUANCE RULE, APPLICABLE TO BOTH CIVIL AND CRIMINAL CASES, FALLS WITHIN THE INHERENT POWER OF THE COURT TO REGULATE ITS OWN PROCEDURE. THE GRANTING OR REFUSING OF CONTINUANCES DEPENDS UPON THE FACTS OF THE SITUATION. IN THE ABSENCE OF GUIDELINES TO FOLLOW, THE INEVITABLE RESULT HAS BEEN A VAST BODY OF CASE LAW WHICH ALLOWS LITTLE UNIFORMITY AMONG OR WITHIN JURISDICTIONS. IN GENERAL, THE ONLY LIMIT ON THE INHERENT POWER OF THE COURT IS THE ABUSE OF DISCRETION RULE INVOKED BY APPELLATE COURTS ON REVIEW, AND IN MOST INSTANCES THE APPELLATE COURTS ARE RELUCTANT TO INTERFERE WIH TRIAL COURTS' RULINGS ON THIS ISSUE. GROUNDS ON WHICH CONTINUANCES HAVE BEEN GRANTED OR REFUSED IN CIVIL AND CRIMINAL CASES ARE EXAMINED AT LENGTH. ON THE BASIS OF CASE LAW AND DECISIONS A NUMBER OF RECOMMENDATIONS ARE OFFERED TO COVER A VARIETY OF CONTINUANCE SITUATIONS. IN CASES INVOLVING DISCHARGE OR WITHDRAWAL OF COUNSEL, THE GOOD FAITH OF THE MOVING PARTY IS OF PARAMOUNT IMPORTANCE. IN BOTH CIVIL AND CRIMINAL CASES, WHEN COUNSEL WISHES TO WITHDRAW OR IS DISCHARGED, THE CLIENT SHOULD BE REQUIRED TO EXECUTE A STIPULATION THAT NO FURTHER DELAYS WILL BE REQUESTED ON THIS GROUND. IN CRIMINAL CASES ONLY, NO WITHDRAWAL OR DISCHARGE SHOULD BE PERMITTED WITHIN TWO WEEKS OF THE TRIAL DATE, THUS ALLOWING THE DEFENDANT SUFFICIENT TIME TO OBTAIN OTHER REPRESENTATION. ADEQUATE NOTICE OF TRIAL DATE SHOULD BE AGREED UPON AT THE PRETRIAL HEARING TO ENABLE COUNSEL TO ARRANGE SCHEDULES SO AS TO ELIMINATE DOCKET CONFLICTS AS A GROUNDS FOR CONTINUANCE. WHERE COUNSEL FAILS TO APPEAR, APPROPRIATE SANCTIONS SHOULD BE IMPOSED FOR CONTEMPT. IN CASES OF ILLNESS WHERE COUNSEL IS BEFORE THE COURT, DISCRETION IS RECOMMENDED. WHERE COUNSEL IS NOT PRESENT, A PHYSICIAN'S CERTIFICATE INDICATING THAT THE ILLNESS WAS SUDDENLY INCURRED, IS SUCH AS TO POSE A DANGER TO HEALTH OF COUNSEL WERE HE OR SHE TO APPEAR AT COURT, AND WILL PERMIT RETURN TO TRIAL WITHIN A REASONABLE TIME SHOULD BE REQUIRED FOR BOTH CRIMINAL AND CIVIL CASES. IN CRIMINAL CASES WHERE DEFENDANTS ARE LEFT WITHOUT COUNSEL DUE TO ILLNESS, SUBSTITUTE COUNSEL SHOULD BE APPOINTED BY THE COURT AND SUFFICIENT TIME FOR CASE PREPARATION SHOULD BE ALLOWED. WHERE A PARTY IS ABSENT, CONTINUANCE SHOULD BE GRANTED ONLY IF THE PARTY IS A MATERIAL WITNESS AND THE EVIDENCE CAN NOT BE OBTAINED THROUGH OTHER MEANS. VOLUNTARY ABSENCE SHOULD NOT CONSTITUTE GROUNDS FOR CONTINUANCE. IN CRIMINAL CASES, ABSENCE OF THE PARTY SHOULD BE GROUNDS FOR CONTINUANCE ONLY WHEN A PHYSICIAN CERTIFIES THAT APPEARANCE AT THE TRIAL WOULD BE DANGEROUS TO THE HEALTH OF THE DEFENDANT. STRATEGIES FOR IMPLEMENTING THESE RECOMMENDATIONS ARE SUGGETED. NOTES ARE ALSO PROVIDED. (JAP)