A “continuance” is a postponement of a trial or other legal proceedings until some later date.226 A motion for a continuance, if supported by sufficient grounds, may be made at any time in the course of the proceedings. The decision whether to grant a continuance is within the discretion of the trial court. 227 It has been said that courts should exercise a liberal discretion in granting continuances where, by reason of variance or insufficiency of proof, justice cannot be done between the parties.228 It has also been stated that continuances should be granted only upon a showing of good cause and only for as long as necessary.229 In determining whether to grant a request for a continuance, the court should consider any prejudicial effect that the delay will have on the non-moving party.230 A court should also consider the length of time the case has been pending.231
There is no mechanical test for determining when a continuance is appropriate. It must be decided on a case-by-case basis in light of the circumstances present at the time.232 A continuance is ordinarily appropriate when an opponent produces surprise evidence at trial, particularly when the surprise is due to the opponent’s failure to update its discovery responses. It is not automatic, however. A court must balance its duty to admit all relevant evidence with its duty to enforce standards of fairness and the Rules of Court. The judge must consider the reasons for withholding the discoverable information and the degree of prejudice that will result from its admission.233 The party requesting the continuance has the burden of establishing a clear record of the relevant facts relating to the criteria for a continuance, including the length of the requested continuance. The requesting party must demonstrate (i) that it was diligent in preparing for the presentation of the testimony, (ii) that the continuance will be likely to satisfy the need to present the testimony, and (iii) that the inconvenience to the Court, opposing parties, witnesses and jurors is insubstantial in relation to the likely prejudice which would result from the denial of the continuance.233.1
A party’s illness may also warrant a continuance, provided that the moving party establishes by record evidence the validity of such claim of illness.234 The illness of a party’s attorney may warrant a continuance if that attorney has been the one solely responsible for the entire preparation of the case, but not, if the attorney is but one of several who are representing a party in the matter.235 It is also proper to grant a continuance when a case is pending before the Supreme Court that will decide a principle of law that is controlling on the lower court case.236
A party may also seek a continuance on the ground of the absence or unavailability of a material witness. Such an application must be accompanied by an affidavit to acquaint the court with the facts upon which the motion is based, so that the court can exercise its discretion reasonably. The affidavit must state (i) that the witness is absent or unavailable; (ii) the facts about which the witness is to testify, to show that the testimony is material and relevant; (iii) the efforts made to procure the witness’s attendance; and (iv) when the absence or unavailability of the witness first became known.237 The affidavit should also indicate that there is a reasonable certainty of securing the presence of the witness at the continued date.238 Identifying in the affidavit the residence of the witness, if known, may be helpful to the court in passing on the question of the due diligence and reasonable effort undertaken to secure the attendance of the witness. The fact that the residence is unknown may be relevant to the court in determining whether there is a reasonable certainty of securing the presence of the witness at the continued date.239 The affidavit should be made by a party to the action. In the case of a corporate party, the affidavit should be made by a corporate officer.240 A court may deny such a request if the opposing party is willing to stipulate that the witness would testify as set forth in the affidavit, in which case the affidavit may be offered as evidence at trial.241 A court may also deny such a request if the requesting party fails to show that the testimony of the absent witness will be material and favorable to the requesting party and not merely cumulative to the testimony of available witnesses.241.1
Where a party’s counsel has been disqualified, a continuance should be granted to permit that party to obtain new counsel.242 In criminal trials, courts occasionally are faced with eve-of-trial requests for continuances to permit the defendant to obtain new legal counsel. Denials of such requests have been upheld where (i) there was no previous complaint about counsel; (ii) a defendant had a prior opportunity to obtain substitute counsel; and (iii) the request appeared to be a dilatory tactic.243 Courts have also denied requests for continuances in criminal cases where new counsel failed to show that it had inadequate time to prepare to try the case.244
Similarly, eve of trial requests for a continuance to obtain an interpreter may be denied in the absence of prior requests for an interpreter (especially where the defendant has attended pre-trial proceedings without the need for an interpreter and there is evidence that the defendant understands English).244.1
In a criminal case, for a defendant to obtain a continuance during the trial to obtain additional evidence to respond to evidence by the State that the defendant claims was a surprise, the defendant must show (i) that he or she was diligent in preparing for the presentation of the evidence; (ii) that the continuance will be likely to satisfy the need to present the testimony; and (iii) that the inconvenience to the court, opposing parties, witnesses and jurors is insubstantial in relation to the likely prejudice which would result from the denial of the continuance. The defendant must also identify the length of the proposed continuance.244.2
By rule in the Family Court, a written request for a continuance must contain (i) a statement of the original filing date of the petition; (ii) the position of opposing counsel or, if none, the position of the opposing party on the request; (iii) the number of times the case had been previously scheduled for a hearing; (iv) the reasons for the request; and (v) if the reason for the request is a scheduling conflict, the name of the other court and case which is causing the conflict, along with the date the other case was scheduled.245
Similarly, by policy directive in the Justice of the Peace Court, a request for a continuance should contain (i) the specific reason for the request; (ii) the position of opposing counsel or the opposing party (if appearing pro se) on the request for a continuance, if possible; (iii) if the request has been made because of the attorney’s or the party’s scheduled appearance in another court, along with a copy of the other court’s trial notice or, if the notice is not available, the name of the other case, the court, the date and time of the appearance, and the date the other hearing was scheduled.245.1
A court can impose conditions upon the grant of a continuance, such as requiring the movant to reimburse the non-movant for out-of-pocket expenses resulting from the continuance,246 or that there be no further delay of scheduled discovery.247
226. Lanova Corp. v. Atlas Imperial Diesel Engine Co., 64 A.2d 419, 421 (Del. Super. 1949).
227. Roache v. Charney, 38 A.3d 281, 286 (Del. 2012); Secrest v. State, 689 A.2d 58, 64 (Del. 1996); Riley v. State, 496 A.2d 997, 1018 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); Hicks v. State, 434 A.2d 377, 381 (Del. 1981); Raymond Heartless, Inc. v. State, 401 A.2d 921, 923 (Del. 1979); Powell v. State, 332 A.2d 776, 778 (Del. 1975); Bailey v. State, 521 A.2d 1069, 1088-89 (Del. 1987); State v. Henry, 105 A. 849, 850 (Del. Super. 1918); Dickson & Dickson v. Lewis & Graham, 2 Del 289, 2 Harr. 289, 290 (Del. Super. 1837).
228. Emerson v. Universal Products Co., 179 A. 383, 384 (Del. Super. 1934), afl’d, 179 A. 387 (Del. 1935).
229. Powell v. State, 332 A.2d 776, 779 (Del. 1975).
230. See Dulany v. Boston, 2 Del. 350, 2 Harr. 350 (Del. Super. 1838).
231. Short & Walls Lumber Co. v. Blome, 46 Del. 446, 85 A.2d 235, 236 (Del. Super. 1951).
232. Bailey v. State, 521 A.2d 1069, 1088 (Del. 1987).
233. Concord Towers, Inc. v. Long, 348 A.2d 325, 326 (Del. 1975); Hoey v. Hawkins, 332 A.2d 403, 407 (Del. 1975); S.B. v. Bureau of Child Support Enforcement. C.A. No. 82A-AU-4, slip op. at 4, Bifferato, J. (Del. Super. Jan. 25, 1984).
233.1. Roache v. Charney, 38 A.3d 281, 287 (Del. 2012).
234. Haug v. State, 406 A.2d 38, 43 (Del. 1979) (additional continuance denied when movant was unable to obtain an affidavit from his doctor supporting his claim of illness); State v. Lane, 518 A.2d 976 (Del. Super. 1986) (defendant granted indefinite continuance to recover from surgery, but denied later request for continuance when it appeared that the defendant had regained sufficient strength to tolerate an adjusted trial schedule, notwithstanding that the defendant’s physical condition would not improve); Chadwick v. Parkhill Corp., 141 A. 823, 825-26 (Del. Ch. 1928); In re Philadelphia, B. & W. R. Co., 105 A. 676 (Del. Super. 1919).
235. V.B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware § 631 (1906).
236. E. F. Kirwan Mfg. Co. v. Truxton, 42 A. 988, 989 (Del. Super. 1898).
237. Ch. Ct. R. 40(d); Super. Ct. Civ. R. 40(c); Comm. Pls. Ct. Civ. R. 40(C); Fam. Ct. Civ. R. 40(g). See also Gulf Oil Corp. v. Slattery, 172 A.2d 266, 286 (Del. 1961); State v. Henry, 105 A. 849, 851-52 (Del. 1918); Dickson & Dickson v. Lewis & Graham, 2 Del. 289, 2 Harr. 289 (Del. Super. 1837). Similar information may be helpful in seeking a continuance to locate physical evidence. See Logan v. Fanners’ Bank, 5 Del. 431, 5 Harr. 431, 432 (Del. Super. 1859).
238. State v. Henry, 105 A. 849, 851 (Del. 1918); Voorhees Rubber Co. v. Brunswick-Balke-Collender Co., 105 A. 786, 787 (Del. Super. 1919); State v. Russo, 77 A. 743, 745 (Del. O. & T. 1910); Gallagher v. Diamond State Steel Co., 57 A. 533, 534 (Del. Super. 1904). See also Preston v. State, 306 A.2d 712, 715 (Del. 1973).
239. State v. Henry, 105 A. 849, 851 (Del. 1918).
240. See Voorhees Rubber Co. v. Brunswick-Balke-Collender Co., 105 A. 786, 787 (Del. Super. 1919).
241. Ch. Ct. R. 40(d); Super. Ct. Civ. R. 40(c); Comm. Pls. Ct. Civ. R. 40(c); Fam. Ct. Civ. R. 40(g); Fam. Ct. Cr. R. 23(g). See also State v. Henry, 105 A. 849, 851 (Del. Super. 1918).
241.1. Dixon v. State, Cr. A. Nos. IK94-03-0267-023A, slip op. at 4, Terry, J. (Del. Super. Feb. 17, 1995).
242. Queen’s Quest Condominium Council v. Sea Coast Builders. Inc., C.A. No. 89C-0C7, slip op. at 6, Graves, J. (Del. Super. Mar. 30, 1992).
243. Stevenson v, State, 709 A.2d 619, 631 (Del.), cert. denied, 525 U.S. 967 (1998); Bradley v. State, 559 A.2d 1234, 1240 (Del. 1989); Riley v. State, 496 A.2d 997, 1018 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); Hicks v. State, 434 A.2d 377, 381 (Del. 1981). See also Raymond Heartless, Inc. v. State, 401 A.2d 921, 923 (Del. 1979) (second continuance denied where defendants obtained a new counsel but made no attempt to communicate with counsel for six weeks until trial).
244. See Powell v. State, 332 A.2d 776, 779 (Del. 1975); Martin v. State, 433 A.2d 1025, 1034 (Del. 1981), cert. denied, 454 U.S. 1151 (1982).
244.1. Ortiz v. State, No. 16, 2004, Jacobs, J. (Del. Nov. 16, 2004), disposition reported at 862 A.2d 386 (Del. 2004) (TABLE).
244.2 Secrest v. State, 679 A.2d 58, 66 (Del. 1996).
245. Fam. Ct. Civ. R. 40(a); Fam. Ct. Cr. R. 23(a).
245.1. J.P. Policy Directive 81-050 (1st Supp.) (Feb. 13, 1995).
246. Moore v. Ruth, No. 203, 1984, slip op. at 3, Christie, J. (Del Mar. 7, 1985) (ORDER), disposition reported at 497 A.2d 789 (Del. 1985) (TABLE); Deburnure v. Wohison Constr. Co., C.A. No. 88C-MR-207, Toliver, J. (Del. Super. July 31, 1992) (ORDER).
247. Lloyd v. A.C. & S. Co., Inc., CA. Nos. 83C-AP-1 19 & 83C-FE-l0, slip op. at 4, Taylor, J. (Del. Super. Oct. 6, 1988) (ORDER).
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