(a) Assignment of judges. The President Judge of the Superior Court is designated Assignment Judge for the Superior Court with authority to assign and designate the several judges who shall hold said courts or either of them in the several counties of the State for any designated period of time or for the hearing of any 1 or more designated causes. Upon motion by any party to any cause to the President Judge of the Superior Court, and for good cause shown, the President Judge may designate any judge of the Superior Court for the hearing of any or all proceedings in the cause.
Rule 40.Assignment of judges; special juries; continuances
Part VI: Trials · Last amended January 1, 1991 · Last verified July 28, 2026
In one sentenceRule 40 gives the President Judge authority to assign Superior Court judges to counties and cases, requires a special-jury application before a case is marked for trial, and requires a continuance sought over an absent material witness to rest on an affidavit filed as soon as the absence becomes known.
Full Text of Rule 40
(b) Special juries. Application for a special jury shall be made at or before the marking of the case for trial. A party who has applied for a special jury may withdraw such application and have the case tried by the general jury, provided that the granting of such withdrawal will not unduly prejudice or inconvenience an opposing party. Special juries shall be selected in accordance with the plan for the selection of special juries, which shall be filed and available for inspection in the offices of the prothonotaries for each county.
(c) Continuance: Absence of material witness. Every motion for continuance upon the ground of the absence of, or unavailability of, a material witness shall be filed as soon as said absence or unavailability becomes known and shall be accompanied by an affidavit on behalf of the party applying therefor, setting forth the facts which the party expects to prove by such witness, the efforts made to procure the witness’ attendance, and the date when the absence or unavailability of the witness became known. If it be stipulated by the opposite party that the witness if called would testify as set forth in the affidavit, the Court, in its discretion, may refuse the motion, and under such circumstances, the affidavit may be offered in evidence at trial.
Amendment History
Amended, effective June 30, 1954; Oct. 15, 1980; May 1, 1982; Jan. 1, 1983; Jan. 1, 1991.
Plain-English Summary
Rule 40(a) designates the President Judge of the Superior Court as Assignment Judge, with authority to assign and designate the judges who sit in each county and to set how long they hold court there or hear particular causes. On motion by any party and for good cause shown, the President Judge can also designate a specific judge to hear any or all proceedings in a given cause.
Rule 40(b) covers special juries: the application has to come at or before the case is marked for trial, and a party can withdraw it and go back to the general jury as long as that withdrawal won't unduly prejudice or inconvenience the opposing side. Special juries are drawn under a selection plan filed and open for inspection at each county's prothonotary's office.
Rule 40(c) sets what a continuance motion needs when the ground is an absent or unavailable material witness: it must be filed as soon as the absence or unavailability becomes known, accompanied by an affidavit setting out the facts the party expects to prove through that witness, the efforts made to secure the witness's attendance, and the date the absence or unavailability became known. If the opposing party stipulates that the witness, if called, would testify as the affidavit describes, the Court can refuse the continuance in its discretion — and in that situation, the affidavit itself can be offered into evidence at trial.
Frequently Asked Questions
Who assigns Superior Court judges to hear cases in a particular county?
Rule 40(a) designates the President Judge of the Superior Court as Assignment Judge, with authority to assign judges to the counties and to designate a judge for particular causes on motion and for good cause shown.
When do I have to apply for a special jury?
Rule 40(b) requires the application to be made at or before the case is marked for trial.
What does a motion for continuance based on a missing witness need to include?
Rule 40(c) requires the motion to be filed as soon as the witness's absence or unavailability becomes known, accompanied by an affidavit stating the facts the party expects to prove, the efforts made to secure the witness's attendance, and when the absence became known.
Can the other side block my continuance motion by stipulating to what the witness would say?
Yes. Rule 40(c) allows the Court, in its discretion, to refuse the continuance if the opposing party stipulates the absent witness would testify as the affidavit describes, and the affidavit may then be offered as evidence at trial.
Can I withdraw my application for a special jury and go with the regular jury pool?
Rule 40(b) allows withdrawal of a special-jury application in favor of the general jury, provided the withdrawal won't unduly prejudice or inconvenience an opposing party.
Source & verification. Rule text is reproduced verbatim from the
Delaware Rules of Civil Procedure for the Superior Court, adopted by the
Superior Court of the State of Delaware. Last verified July 28, 2026.
· Official source
Also known as: delaware special jury applicationcontinuance for absent witness affidavitpresident judge case assignment delawaredelaware superior court judge assignmentmaterial witness unavailable continuance rule