Asking for a continuance: good cause, an affidavit, and moving as soon as you know

Continuance rules differ in wording from state to state but converge on the same three demands. Show good cause. Support it with a sworn statement. And ask as soon as you know you need it.

The third is where most requests fail. A strong reason presented late is weaker than a modest reason presented promptly, because delay in asking is itself the thing courts treat as disqualifying.

Trial dates are meant to be firm

Some rules say so outright. Cal. Rules of Court, rule 3.1332(a):

Trial dates are firm To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.

And (c): "Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance."

Note the standard: an affirmative showing of good cause requiring the continuance — not merely making it convenient.

Ask as soon as you know

The same California rule, 3.1332(b), states the timing obligation about as plainly as any rule does:

A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.

Two things worth taking from that. Even an agreed continuance requires a motion or application — the parties cannot simply stipulate the trial date away. And the obligation is to move "as soon as reasonably practical once the necessity … is discovered", which means the clock starts when you learn of the problem, not when the hearing approaches.

The affidavit requirement

Texas states the general rule compactly. Tex. R. Civ. P. 251:

No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.

Three routes to a continuance in that sentence — sufficient cause supported by affidavit, consent of the parties, or operation of law — and one precondition: no application is heard before the defendant has filed a defence.

Where the reason is a missing witness or missing evidence, Texas spells out what the affidavit must contain. Tex. R. Civ. P. 252:

If the ground of such application be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known; that such testimony cannot be procured from any other source; and, it if be for the absence of a witness, he shall state the name and residence of the witness, and what he expects to prove by him; and also state that the continuance is not sought for delay only, but that justice may be done; provided that, on a first application for a continuance, it shall not be necessary to show that the absent testimony cannot be procured from any other source.

That is a checklist, and it generalises well beyond Texas. A missing-evidence continuance affidavit should establish:

• materiality — and show why, not merely assert it;
• due diligence — stating what you actually did;
• the cause of failure, if known;
• that the testimony cannot be obtained elsewhere (excused on a first application);
• for an absent witness, the name and residence and what you expect to prove; and
• that the continuance is not sought for delay only, but that justice may be done.

The last item appears in some form in most states' practice, and leaving it out is a common defect.

Texas also anticipates the obvious objection about depositions: failing to depose a witness within 100 miles of the courthouse is not want of diligence where diligence was used to secure the witness's personal attendance — unless age, infirmity, sickness, official duty, or departure from the state or county makes attendance unlikely.

What tends to count as good cause

Rules that enumerate grounds tend to cluster around the same categories:

And the factors weighed against them are consistent too: the proximity of the trial date, whether there have been previous continuances, the prejudice to the other parties and to witnesses, whether the case is entitled to preference, and whether the moving party's own conduct created the problem.

Practical points that apply almost everywhere

Agreement does not decide it. A stipulation helps, but the court still has to grant the request.

A brief is not an affidavit. Where the rule requires a sworn statement or declaration, an assertion in a memorandum does not satisfy it. This is the single most common reason a continuance motion fails on the papers.

Say what you will do with the time. A request that names a date by which the problem will be solved is materially stronger than one that asks for delay in the abstract.

Ask for the smallest continuance that works. Courts grant short, defined extensions far more readily than open-ended ones.

A denied continuance is not the end of the point. Where the underlying problem is missing evidence, consider whether the rule that governs that problem offers relief — several jurisdictions allow a court to defer or deny a summary judgment motion on an affidavit showing essential facts cannot yet be presented.

Where the rules sit

Continuance practice is scattered. In some states it is in the rules of civil procedure; in others it is in the rules of court, in local rules, or in a judge's standing order. Before drafting, check all three — the local rule is very often where the real requirement lives, including how many days' notice the court expects and whether an ex parte application is permitted.

A short checklist

1. Move as soon as you know. Promptness matters more than the strength of the reason.
2. Check the local rules and the judge's standing orders as well as the state rule.
3. Support it with an affidavit or declaration. A statement in the brief will not do where a sworn statement is required.
4. Show materiality and diligence — say what you did, not that you were diligent.
5. For a missing witness, give the name, the residence, and what you expect to prove.
6. Say expressly that it is not sought for delay.
7. Propose a specific new date and explain what will be different by then.
8. Get the other side's position and say what it is, even if they oppose.
9. Ask for the shortest continuance that solves the problem.
10. If it is refused and the problem is missing evidence, look at the rule governing that motion — the relief may exist there instead.

Where these rules live

• Tex. R. Civ. P. 251 — Continuance
• Tex. R. Civ. P. 252 — Application for Continuance
• Tex. R. Civ. P. 253 — Absence of Counsel as Ground for Continuance
• Tex. R. Civ. P. 254 — Attendance on Legislature
• Cal. Rules of Court, rule 3.1332 — Motion or application for continuance of trial
• Mo. R. Civ. P. 65.03 — Continuances — Application — Contents
• FRCP 6 — Computing and Extending Time

This page explains the shape these rules take across jurisdictions. It isn't legal advice, and the governing rule in your court — including any local rule or standing order — should be read before you file.