Rule 40.Scheduling and postponing a trial
Part VI: Trials · Last amended April 1, 2008 · Last verified July 13, 2026
Full Text of Rule 40
Amendment History
Repealed and reenacted effective April 1, 2008.
Plain-English Summary
Rule 40 puts trial scheduling in the court's hands, but only once a case has reached the point of being ready. Until a case is certified under Rule 16 — meaning the parties have finished the pretrial steps that make a case trial-ready — the court has discretion over whether to set a trial date at all.
Even a scheduled trial can move. Rule 40(b) lets the court postpone a trial for good cause, on whatever terms are fair, which can include requiring one side to cover costs caused by the delay.
Rule 40(c) addresses a narrower problem: a witness whose testimony might not be available by the time trial happens. On request, the court can hold a hearing to examine and cross-examine that witness in advance, and the resulting testimony can be read into the record at trial with the same effect — and the same grounds for objection — as deposition testimony taken under Rule 32.
Frequently Asked Questions
When can I ask the court to schedule a trial date?
Generally once the case has been certified under Rule 16. Before certification, scheduling a trial is up to the court's discretion.
Can a scheduled trial date be moved?
Yes. The court can postpone a trial for good cause, on terms it finds just, which can include making a party pay costs caused by the postponement.
What if a key witness might not be available for trial?
The court can hold a hearing in advance to examine and cross-examine that witness, and the testimony can be read at trial with the same effect as a deposition under Rule 32.
Is the court required to set a trial date once a case is certified?
No. Even after certification, scheduling a trial remains discretionary with the court.
Can I be made to pay costs if I ask for a postponement?
Yes. The court can condition a postponement on payment of costs as part of what it considers just.