The OJCC sponsors ongoing continuing education for our judges and mediators. We call it "Second Fridays," as that is when it occurs. It is presented 8-9 months out of the year by video, telephone or Webex. Several years ago Richard Thompson (former JCC in Orlando and now with Zenith) was kind enough to present a program "the View from the Other Side of the Bench." It was a success and we repeated it in May this year with Glen Wieland and Karen Gilmartin presenting. They did a great job, and will return in 2014 for a command performance. The whole purpose of the presentation was to bring issues or perceptions to light and to generate conversation. It did.
One of the issues raised in the conversation is a perception that JCCs deny continuances because of some fear of statistics, and the 210 day statutory parameter. A more specific example of this involved instances in which the parties agree to a continuance, but it is nonetheless denied. After "the View" program in May, I heard from some JCCs who were troubled by that perception among the bar. One suggested that I write about the 210 day parameter to provide some guidance on denials of continuances. While it is impractical to know what influences any judicial decision, the following are thoughts that have been shared in response to the perception of "statistic fear."
The statutory reference that comes first to mind is Fla. Stat. §440.25(4)(b). This says "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." This does not afford continuance just because the parties agree/stipulate to the continuance. It requires a showing of "beyond the party’s control." The section also states "A continuance 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 control of the parties." Thus, even if the parties agree that there is a need for continuance, that motion might not be granted if the Judge does not perceive the statutory predicate. As one Judge said to me after the May program, "tell us why in the motion, it only takes a few sentences." Another asked “why do we hear about the circumstances on the motion for rehearing, after the continuance motion has been denied?
Another point raised is the consent issue. Regardless of whether there is a stipulation for a continuance, and regardless of whether sufficient basis is plead for the " beyond the control of the parties" finding, if it is a second ("additional") continuance, the statute requires "written consent of the claimant." Usually this is done by stating this consent in the motion, and having the Claimant sign the motion. In other instances, attorneys attach a note from the Claimant which acknowledges that there will be an "additional continuance" and expressing the agreement with the granting of the "additional." However, there are occasions when the parties properly explain the "beyond the party's control" but fail to present substantiation of the Claimant's consent. This is a critical statutory element of any motion which seeks an additional continuance in a case.
Some take the position that the language in Fla. Stat. §440.25(4)(d) overrides these quoted statute sections in Fla. Stat. §440.25(4)(b). For example, (4)(d) says that "the claimant may waive the timeframes within this section." I am told Judges see that language cited in agreed continuance motions/stipulations. However, there is no period after "section" in the statute, the complete phrase is actually "the claimant may waive the timeframes within this section for good cause shown." In other words, this section may seem to support the continuance language in (4)(b) and it may be prudent to state the "good cause" in that motion.
In short, the response I have heard from Judges is not that they are hesitant to grant continuances because of any statistic or statutory parameter, but that some feel that the requirements of the statute ("beyond the party’s control;" "consent of the claimant;" and "good cause shown.") should be plead sufficiently in the motion or stipulation to support a judicial finding that the statutory prerequisites for a continuance have been met. These judges' suggestions support the efficacy of pleading the reason for a continuance, rather than simply stating that the parties agree that a continuance is appropriate, necessary, or indispensable.
Whether to grant a continuance or not is within the sound discretion of the trial judge. Certainly, I cannot know what drives a particular decision any better than anyone else reading the judge's order. However, the best advice and best practice is that a motion for continuance should address the statutory requirements, even if briefly, to justify the outcome which you seek. The better you explain it in the motion, the better your odds.
