Rule 40.Assignment of Cases for Trial: Continuances
Effective July 1, 1974 · Last verified June 26, 2026
Full Text of Rule 40
Rule History
Effective July 1, 1974.
Reporter’s Notes
(1973)
Rule 40 governs in a general way the final progress of cases toward trial. Federal Rule 40, on the other hand, deals only with the assignment of cases for trial. It says nothing of continuances.
It should be emphasized that Rule 40 states general principles pertaining to assignment and continuances. It does not attempt to lay down detailed regulations. Thus the matters covered by Super.Ct.R. 57, 57a, and 59-70 will still require the promulgation of standing court orders, and Rule 40(a) anticipates this.
Rule 40(a) does not alter practice. In Massachusetts, courts have the inherent power to place cases on the trial list even without request of the parties, Sweeny v. Home Owners' Loan Corporation, 307 Mass. 165, 166, 29 N.E.2d 712 (1940).
Rule 40(a) makes no explicit provision for advancing an action for speedy trial. G.L. c. 231, s. 59A allows the Court upon motion for cause shown to advance an action for speedy trial. The final sentence of Rule 40(a) embodies this practice. See also, G.L. c. 231, s.s. 59B-E, for other examples of statutory special preferences. (Even without statute, the Court seems to have power to advance cases for speedy trial. See Merchants' National Bank of Bangor v. Glendon Company, 120 Mass. 97, 99 (1876).)
Rule 40(b) and Rule 40(c) state general principles pertaining to continuances. By and large, they codify existing practice. The granting or denial of a continuance is discretionary with the court; the court's exercise of discretion will not be disturbed on appeal, absent a showing of abuse. Mowat v. Deluca, 330 Mass. 711, 712, 116 N.E.2d 322, 323 (1953). The Court may grant a discretionary continuance at any time prior to trial, indeed at any time prior to judgment. American Woodworking Machinery Co. v. Forbush, 193 Mass. 455, 457, 79 N.E. 770, 771 (1907).
Plain-English Summary
Rule 40 handles trial scheduling. Cases are assigned to the appropriate calendar or list by court order and general rules, with precedence given to actions a statute entitles to it.
Continuances are not for the asking—they are granted only for good cause under the court's rules. The rule adds a specific safeguard for the common request to postpone because a witness is missing: the court need not entertain it unless an affidavit names the witness, states the expected testimony and the efforts to secure attendance, and the prospect of getting it later. The court may still deny the continuance if the other side will admit the absent witness would testify as the affidavit says.
Frequently Asked Questions
When will a court grant a continuance?
Only for good cause, in accordance with the general rules and orders the court has adopted.
What is required to postpone a trial because a witness is unavailable?
An affidavit naming the witness, stating the facts the witness is expected to testify to, the efforts made to secure attendance or a deposition, and the expectation of obtaining the testimony later. The court may deny the request if the opposing party admits the witness would testify as stated.