Common Reasons Why You Should Request a Rescheduling
In general, courts expect parties to be prepared to go on the scheduled date. For good cause shown, courts will likely reschedule hearings or trials. Some legal grounds accepted by courts include:
An Emergency
This is probably the most common matter for which dates are rescheduled. Examples include a family emergency, such as a serious illness or death in the family, unexpected car troubles preventing you from getting to court or a sudden inclement weather emergency that prohibits travel. An emergency may also be related to work. These reasons usually require some written documentation that supports the request. For example, if your car is in the shop, you may want to have a copy of the receipt. If a family member is ill, a doctor’s note will likely suffice.
Attorney Conflicts
Attorneys are not permitted to represent more than one party in a given case . Even if you have hired an attorney to represent you, it is possible that your attorney has another case that conflicts. If your attorney makes a request for a continuance, you may submit a declaration to support the request.
Improper Notice
If you and your spouse share children, but you were never given legal notice of a hearing involving your children, you may have grounds for a continuance. Keep in mind that just because a type of notice was not followed by the other party does not necessarily mean that the court will grant a continuance. If you suspect improper notice, you may wish to consult with an experienced lawyer to help make this argument.
Although there are a variety of valid reasons for a court to grant a continuance of a scheduled date, you should avoid overusing the court’s leniency. Doing so may have a negative impact on your credibility with the judge. As a result, it may jeopardize your position in the case.
Health Related Reasons
Medical emergencies or significant health issues can be a justifiable reason to ask to reschedule a court date, as your ability to appear in a legal matter may be hindered. Examples of medical emergencies include sudden illness, injury, surgery and hospitalization that interfere with your ability or capacity to travel to court and appear before the judge.
Generally, you’ll be expected to provide some sort of documentation proving that your medical condition is sufficient to prevent you from traveling to court. The judge will expect to see notes or paperwork from your doctor supporting your claims. Depending upon how soon prior to the court date you become ill or injured, and how serious the situation is in the judgment of the judge, you may be able to even have the matter postponed altogether, or you may be expected to have representation appear so that your medical condition does not allow the case to fall through entirely.
You may have a choice as to the way the case moves forward, or the court may simply assign you a future date. When you alert the court and the legal party representative of your medical condition, the judge may have you waive your right to be heard immediately and allow the case to be addressed at a later date or time. You may still have the option to agree to simply return to court at a later date and have your legal matter handled in the future.
As is the situation for any new emergency, it’s wise to contact your legal representative as soon as possible. It’s also a good idea to be proactive so that you know what is and is not acceptable when it comes to rescheduling or handling legal matters that you may need to postpone.
Conflicts with Attorneys
When a conflict arises in the schedule of legal counsel, it is a reasonable basis for asking the court to reschedule the date on which the case is set. It may be as simple as legal counsel having a previous engagement or other case that is scheduled for that same date. Or, it may be that the case with which there is a conflict has been tried or settled, or resulted in dismissal inadvertently without notifying the counsel for the home or business being represented. It may be that counsel has something scheduled in another city or outside the State that precludes physical presence at the court date.
To establish a conflict with date, a copy of the calendar with the conflicting appointment should be attached to any motions requesting that the date be reset. The cover letter submitting the Request should include the case number and name, the date and time of the court setting, and a statement summarizing why the schedule with legal counsel and the court date conflict. The specific statement in the personal situation should not be included in the public filing, however.
Insufficient Notice of Court Date
It may come as a surprise to some readers that parties frequently do not receive proper notice of court dates. In some cases notice of the trial date is sent to an incorrect address. A recent case before the Appellate Division, First Department illustrates this problem. This was a post-dissolution motion by the custodial parent for modification of the visitation schedule for the non-custodial parent. The Appellate Division noted that the notice of trial was sent to both parties at the addresses on file with the court. However, after filing her notice of appearance, the custodial parent notified the court that she was moving within the same county and provided the court with her new address. The Appellate Division found that this notice sufficiently relieved her of the obligation to inform the court of her new address pursuant to CPLR 2103(b)(2); therefore, the trial date based on the notice sent to her former address was void. Similarly, where an order to show cause to modify a stipulation of settlement regarding custody and visitation was served by "regular mail , " the Appellate Division voided the order because Family Court Act § 154(b) requires that notice must be "in a manner reasonably calculated to give actual notice in time to allow objections and prepare response[.]" (see also, Family Court Act § 763). See Matter of Colina v Gonzalez, 4 AD3d 211 (1st Dept 2004). This statutory notice requirement may explain why I have seen so many orders to show cause in Supreme Court which, instead of naming the County Courthouse as the place where such papers should be served, name "downtown" or "the courthouse." In some cases, the plaintiff is given improper notice in a different context setting forth the date and location of the trial or hearing. It is well-known that in order to obtain a default judgment against a defendant, the plaintiff must not only have served the complaint and a notice of trial upon the defendant, but also that the plaintiff must have served a statement of readiness upon the Supreme Court in which the action is pending. See CPLR §3215 (a)(4); Smiklas v Rosenfeld, 98 AD2d 481 (2nd Dept 1984); Gold Trade Holding v Teel, 99 AD2d 326 (2nd Dept 1984).
Major Personal Commitment
Sometimes significant obligations unrelated to driving may be sufficient to reschedule a case, depending on the particular circumstances. These obligations include things such as pre-planned travel, a sick family member that needs assistance, or an expectation of reliable child care for young children. Some courts may insist upon a sworn affidavit from friends or family members confirming the nature of a problem, but most courts place the burden for investigation upon the government, rather than the motorist. In one case in Massachusetts, the child of the motorist had fallen ill with chicken pox days before a mandatory court appearance in connection with an OUI charge. Because of the illness, the motorist had no one to watch his child, so he asked to have the court date continued. The request was initially denied, but the motorist followed up with affidavits from family members explaining the situation, and the court then granted the continuance.
How to Request a Reschedule
It is important to remember that rescheduled court dates are not automatic. The law in Florida requires a formal request to be made. That means, there will most likely be paperwork to fill out and the Court has to formally rule on the request. In fact, some judges will only grant the request when both sides agree. In a divorce case, that would be the petitioner and respondent. If they can get along on one matter, why not this?
Typically, you will draft a Motion and Order to Reset Hearing or Trial. They will be dependent on whether it is a Hearing date or a Trial date. Your attorney will bring them back to the Court and the Court will decide what to do with the paperwork. If the Motion gets granted, an Order will be signed which resets the date. Your attorney will contact you with that date so that you can put it on your calendar. Of course, the new date doesn’t apply to any deadlines. Those still apply to the original date . You’ll need to pay attention to that.
Before you fill out the Motion and Order to Reset, you may want to check with the Court to see if you can reset the date. For example, I have been in a county where the Court Clerk told me that "they won’t give me hearing time". In the past, and in most counties, I can call the Court and obtain a date when I need to reset a hearing. However, in this county, I was told that no hearings were being set, for any reason at all. Therefore, if I still wanted to reset the hearing, I would have to submit the Motion and Order and hope the judge would sign it. So, definitely check the local rules and procedures prior to filing anything.
There are limited circumstances in which you do not need to file a Motion and Order to Reset. However, those circumstances tend to be for Trial dates. You may be able to have the courtroom deputy reset the date and then call you as soon as it is confirmed.