Time and again a party files that motion to continue next week’s final hearing. Certainly, there are an abundance of circumstances that necessitate such a continuance at the last minute. People become ill, experts cancel or truncate depositions, witnesses ignore subpoenas. These are examples, and certainly do not constitute a definitive list. The requirements of Fla. Stat. §440.25 are reasonably clear. Trials will occur within 210 days of filing (Fla. Stat. §440.25(4)(d)).
Continuances will be afforded when circumstances necessitate (Fla. Stat. §440.25(4)(b) “continuances may be granted only if the requesting party demonstrates to the judge of compensation claims that the reason for requesting the continuance arises from circumstances beyond the party’s control”).
Too often, I hear stories about denied continuances. Attorneys who contact me in these instances are often feeling that they have been treated poorly or at least inconsistently. I recently heard from an attorney whose continuance was denied. The attorney had come up on the trial date and did not have the expert testimony that was perceived as necessary to prevail. The issue was seen by the parties as neurosurgical, though it is possible an orthopedic specialist might have addressed it. The injury was to the back and for the most part the issues in the case (TTD, TPD, and Impairment) would turn in large part on some specific medical opinions.
As I discussed this with the attorney, I viewed the motion on the OJCC case docket. I noticed that the motion did not provide much in the way of factual background. So I asked the question: “counsel, the hearing is on ________, you filed the motion on _________ (days before), and you stated that it was not possible to obtain the testimony of Dr. _________ until __________ (several months post-hearing)?” This was all confirmed. But, I asked “when did you first contact Dr. _________ to schedule this deposition?” The answer was too familiar, that contact had been no more than a month prior to filing the motion.
Is this realistic on counsel’s part? Do we anticipate that surgical specialists (or any doctor) will be available for a deposition on two or three weeks notice? I will not say that this is never possible, but would guess that such availability will be the result of some cancellation or other exceptional circumstance. Years ago, I heard the saying that “people do not plan to fail, those who fail just fail to plan.” I think these words have served me well over the years.
Most attorneys have overcome this hurdle of practice and plan reasonably well. Knowing that, there are times when our human failings nonetheless surface and we simply make mistakes. We have all had those “V-8” moments when we suddenly realize that something “coulda, woulda, shoulda” been different. Sometimes those include the “oh, I forgot to schedule discovery in the _______ case.” When this happens, I highly recommend a process that has likewise served me well, frank, open admission and a plan for correction.
Years ago, I coined a phrase (I think, perhaps I picked it up from someone, but I do not think so), “a continuance until someday.” Well, “once upon a time” and “happily ever after” and “continuance until someday” go together. They all sound nice and they all are more at home in a children’s story than a hearing room. Certainly, we may sometimes need continuance to an indefinite date, don’t misunderstand. But, most of the time when we have simply had a life event interfere or have made a simple human mistake, we can determine when this litigation train could be back on track.
When moving for a continuance because of such a human error, have that deposition scheduled. Put the date in the motion. This defeats the “someday” conundrum and tells the judge that granting your motion will have a specific meaning in terms of the actual delay that will be caused. When you call opposing counsel, be frank. If you are opposing counsel, coordinate that future deposition date even if you oppose the continuance. You are not giving away anything by cooperating with the clearing the date, you can still oppose the continuance. By cooperating, despite your objection, you are being human and professional and admirable.
When moving for an indefinite continuance (Claimant’s testimony is critical and she/he is in a coma; treating doctor whose testimony is critical was just diagnosed with cancer, will undergo treatment, and recovery time is impossible to predict until after surgery; these are just examples), describe it in detail. Explain why alternatives are not sufficient to correct the situation. Explain what plan you have that will keep the litigation train focused, even if it is not yet on track (that is, how will we fix the train in coming weeks/months, such as “the doctor feels he/she can predict availability for deposition much more accurately after the surgery he/she is undergoing in two months). Most of these continuances are “beyond the moving party’s control.”
In short, your chances of a continuance are best when circumstances are beyond your control. When they are not, and you have made a human mistake: (1) don’t hide it, own it; (2) don’t skirt it, illuminate it in your motion and have a plan to fix it; (3) always be frank with opposing counsel. Admitting error is disarming and frankly professionalism takes some humility sometimes. That is not a human failing, it is a human strength. It takes real self confidence to admit your humanity and own a mistake.
