Rule 40.Assignment of Cases for Trial: Continuances

Rule 40 is identical to its civil counterpart and the source says so before subsection (a). Its third subsection is the one with practical teeth.

Assignment

Cases may be assigned to the appropriate calendar or list for trial or other disposition by order of the court, including general rules and orders adopted for that purpose. Precedence is given to actions entitled to it by statute — which in this court reaches a number of expedited proceedings.

Continuances

Subsection (b) is one sentence: continuances are granted only for good cause, in accordance with general rules and orders the court may adopt from time to time.

The affidavit

Subsection (c) says the court need not entertain a motion for a continuance based on the absence of a material witness unless it is supported by an affidavit stating five things: the witness's name; the address if known; the facts to which the witness is expected to testify and the basis for that expectation; the efforts made to procure attendance or a deposition; and the expectation of procuring the testimony or deposition at a future time.

Then the provision that makes the affidavit double-edged. The motion may be denied, in the court's discretion, if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit. Setting out the expected testimony is therefore not a formality — it hands the other side a way to defeat the continuance by conceding the content.

The same rule applies, with the necessary changes in detail, where the motion rests on a missing document, thing or other evidence.