Motion for Continuance: How to Postpone a Hearing or Trial

What is a Motion for Continuance of Hearing or Trial?

Follow These Instructions to Increase the Likelihood that the Judge Grants Your Motion for Continuance

Civil litigation, the Social Security disability appeal procedure, and the workers comp claim process are slow.

But there is something worse than delays in receiving the personal injury damages, SSDI payments, or workers compensation benefits you deserve: going to a hearing or a trial with a weak case.

Fortunately, you have an option if you feel unprepared as the trial date approaches and want to hire an attorney. You can file a motion for continuance with the court.

This article explains what the judge, the ultimate decision-maker, will consider when deciding whether to grant a motion for a hearing or trial continuance. These tips apply to workers comp hearings, civil trials, and administrative law judge (ALJ) hearings with Social Security’s Office of Hearing Operations.

If you have questions about your case, remember that hiring an attorney and filing a motion for continuance can be beneficial. Complete this form or call (804) 251-1620 or (757) 810-5614. We have helped thousands of injured employees and disability claimants win their cases, many of whom hired us after the court granted a motion for continuance.

Definition of a Motion for Continuance

“Continue” or “continuance” are common words you hear outside the law.

For example, if you tell someone to continue, you mean they should keep going.

However, continuance means something different in legal proceedings.

A continuance is postponing a hearing or a trial to a future date.

Therefore, a motion for continuance requests that the court postpone a scheduled judicial proceeding.

Is There a Difference Between a Continuance and a Postponement of a Hearing or Trial?

Yes, technically.

A continuance means deferring a case’s trial to a different term of court.

In contrast, a court’s decision to postpone the trial means delaying the trial to a different date in the same court term.

However, attorneys and judges use the term continuance in both situations.

Who Decides Whether to Grant a Motion for Continuance?

The judge presiding over your case can grant or deny a motion for continuance.

For example:

• • Rule 2.2 of the Workers Compensation Commission Rules says: “The parties should be prepared to present evidence at the time and place scheduled for hearing. A motion to continue will be granted at the discretion of the Commission upon a showing of good cause.”

• • In civil matters, the Supreme Court of Virginia has held that “The motion for a continuance is, of course, addressed to the sound discretion of the trial court and whether judicial discretion has been properly exercised depends upon the factual situation existing, the burden being upon the complaining party …. to point out the facts and to lay the finger upon the error.”

• • Program Operations Manual System (POMS) DI 33015.032 says that, in Social Security disability cases, “The disability hearing officer (DHO) is responsible for deciding whether to grant a continuance.”

Some judges and deputy commissioners are more willing than others to provide continuances. Indeed, I have found that most workers compensation judges will grant motions for continuances from either party if it is the first such request.

What are Examples of Good Causes for a Continuance?

Examples of good causes to postpone a hearing or a trial include the following:

• • A need for additional pretrial discovery due to your opponent’s late disclosures (such as an IME report)

• • A scheduled vacation

• • A preplanned surgery

• • An upcoming medical appointment that will help the judge determine critical issues in the case

• • A witness’s lack of availability

• • Replacement of counsel

• • Counsel has another hearing, trial, or mediation scheduled for that same date.

• • A motion to amend pleadings or defenses

• • The recent filing of a change-in-condition application

• • School conflicts

What Should I Include in the Motion for Continuance to Increase the Likelihood that the Court Grants My Request?

Follow these recommendations to increase the chance of getting a postponement of a hearing or trial.

• • Ask the opposing party if it objects to continuing the hearing or will consent to your request. Generally, judges are more likely to grant continuances if all the parties agree to a postponement.

• • If the opposing party does not respond to your question about agreeing to the continuance, tell the judge that you tried to discuss it with the other party but did not receive a response.

• • Explain why you want the continuance. The judge will decide if a good cause exists. The motion will likely be denied if you leave the judge guessing about your reasons.

• • State whether this is your first motion for continuance or a successive request. Judges are more likely to grant the first postponement request.

• • If you need a continuance due to a scheduling conflict or a witness’s unavailability, notify the court as soon as possible and tell them when you first became aware of the scheduling conflict or lack of availability and why that witness matters. Generally, the further the hearing date, the more likely the court will grant the continuance.

Sample Motion for Continuance

Here is a sample motion to postpone a hearing.

IN THE VIRGINIA WORKERS COMPENSATION COMMISSION

Bill Smith,

Claimant,

v.

John’s Manufacturing Company,

Employer.

CLAIMANT’S MOTION FOR CONTINUANCE

The claimant, Bill Smith, moves the Virginia Workers Compensation Commission to continue the hearing scheduled for December 1, 2024, at 10:00 AM.

In support of his motion, Smith states:

1. Smith filed his Request for a Hearing more than three months ago.

2. The employer waited until last week to schedule Smith for an independent medical examination with Dr. Yates, which will occur on November 15, 2024.

3. Smith will likely receive a copy of the report less than two weeks before the scheduled hearing.

4. Due process requires that Smith have an opportunity to obtain additional medical evidence from his treating physician or to depose Dr. Yates if the IME report is unfavorable.

5. Smith will likely need additional time to engage in this additional discovery before trial.

The employer’s attorney does not object to this motion for continuance.

Sincerely,

Corey R. Pollard

What Should I Do After Requesting a Continuance?

Until the judge grants your motion for continuance, you should plan on attending the scheduled hearing or trial.

Otherwise, the judge may not rule on the motion (or deny it) and then dismiss your case because you failed to show up.

Can I Move for a Continuance at the Hearing?

Yes.

Although not ideal, you can make an oral motion to continue the hearing at the scheduled date and time.

In Virginia workers compensation, deputy commissioners often grant these verbal motions for continuances to pro se claimants who want to hire legal counsel.

It’s Not Too Late to Hire An Attorney. The Court May Grant a Continuance.

Many injured employees, accident victims, and disability claimants call my firm when they already have a hearing date.

We may need more time to build the case; however, a motion for continuance of the hearing date will give us that time.

Contact my firm today to see if we can help.