How to Get a Small Claims Postponement - dummies

How to Get a Small Claims Postponement

By Judge Philip Straniere

You may find yourself having prepared for court only to have some unexpected event occur resulting in a postponement of your small claims trial. There’s a simple answer to the question “Can I postpone my case?” — that answer is “maybe.”

Such a request should be reserved for serious events such as illness, death, or the like.

The request to postpone your case is called a request for an adjournment or a request for a continuance. The decision as whether or not to grant an adjournment may be in the hands of the clerk or a judge. Don’t presume you will get an adjournment just because you ask for it.

How to ask for an adjournment or continuance

As with everything else in the legal world, there’s a proper protocol to follow when asking for an adjournment, and not following the rules can hurt your case.

Let your opponent know

If you make the request before the scheduled trial date, the request probably goes to the clerk of the small claims court. In the interest of fairness, you also have to notify your opponent. So whether you’re the plaintiff or the defendant, you have to send a copy of the written request to the other side.

Courts often reject written requests that lack any indication that a copy was sent to the other side without even reading them. So if you send a letter to the court or the judge, indicate that you also sent a copy to your opponent.

If the court thinks you haven’t let your opponent know you’re asking for a change to the court date, you may receive your request back stamped with the words “ex parte communication” and no other explanation. Ex parte means only one side is participating.

Ask properly and for a good reason

You can send a written request to the court and to your opponent asking for a postponement, or you can appear at the scheduled time and request the adjournment from the judge or the clerk. In either case, you better have a really good reason to ask for an adjournment.

If you’re requesting an adjournment in writing, make sure you send it far enough in advance so your letter can be received by the court and reviewed and sent to the clerk or the judge so as to have time to act on it. Sending something by fax may seem like a good idea because of the speed involved. But this is really a bad idea for several reasons:

  • The court rules may prohibit fax communications.

  • The fax may not be sent to the correct person at the courthouse.

  • The fax will not establish that you gave notice to the other side of your request.

Some reasons that won’t fly when asking for an adjournment include:

  • You’re not ready. If you aren’t prepared and don’t have all your proof or witnesses available, then why did you bring the case in the first place?

  • You want to harass the other party. If you can’t present a good reason for adjournment, the court will suspect you just want to aggravate your opponent and won’t look favorably on it.

One of the more common reasons a person requests an adjournment is to either consult with or to retain an attorney. Even if the rules of your small claims court prohibit the use of lawyers at trial, they don’t prevent you from speaking with a lawyer before your court date. Most judges will grant an adjournment to permit either party to speak with or actually retain an attorney.

The reason that judges grant adjournments in these cases is that the failure to do so creates an appealable issue should you lose your case after the judge denied your request for counsel.

Sometimes the court grants an adjournment if both sides agree in advance and notify the court in writing of the agreement. If you and the defendant agree to adjourn your case, it’s especially important to notify the court as soon as possible especially in situations where an interpreter has been ordered by the court at public expense.

If you request an adjournment when you appear before the judge, have several alternative dates available when you can come back. Asking for a postponement and then having no idea when you can come back is not a good idea.

If you receive a copy of a request for an adjournment from your opponent, don’t assume it’s going to be granted and stay home on the scheduled date.

Mark the case as final

If the judge grants your request and gives you an adjournment, your case may be marked in the court file as “final.” Having a final marking essentially means that you’re given an adjournment and a new court date, but you won’t get another one beyond that.

If it’s not marked final then the court will entertain another request for an adjournment in the future if the situation warrants it.

The three final markings that can affect what happens on your new court date are as follows:

  • Final versus both parties: If either side is not ready the next time you come to court, the other side can go forward and present all of their evidence. A final marking against both parties can be granted even if only one side requested the adjournment.

  • Final versus plaintiff: If you’re the plaintiff and not ready on your new court date, the court will dismiss the case. This is usually granted when the plaintiff is making the request for the adjournment and the defendant insists he’s ready for trial.

  • Final versus defendant: If the defendant isn’t ready at the new court date, you can go ahead with your case whether or not the defendant is prepared. This is the situation when the defendant is asking for the continuance and the plaintiff insists he’s ready for trial.