Q. My divorce trial is scheduled for next month. I want to change attorneys
- will the case be continued to give a new attorney enough time to prepare
my case correctly?
Trial continuances are disfavored under the law. Any application to continue
a family law trial must be made pursuant to
Cal.Rules of Court, Rule 3.1332. It allows for "ex parte" requests to continue trials as well
as such applications on noticed motions upon a showing of good cause and
in the interests of justice, and lists some examples of what a trial court
might properly consider to be "good cause." Subsection (c)(4)
includes substitution of trial counsel as a ground
"but only where there is an affirmative showing that the substitution
is required in the interests of justice." Courts are highly unlikely
to permit more than one continuance without a really good reason, so I
hope this is your first request.
Usually when you file this kind of ex parte you should also ask the court,
"in the alternative", for "an order shortening time"
(OST) for the hearing on the motion" since judges are feeling pressured
from the "Elkins" changes in the law and are stretched in their
abilities to read ex parte paperwork (usually received by the court the
day before or the morning of) at the last moment. Indeed, ex parte applications
on all matters except the direst emergencies are being increasingly denied
- and they irritate judges. In fact, some judges may sanction a party
or their attorney for a clearly improper one.
Whether you seek an OST also depends upon where you are in the procedural
timeline - for instance, if the discovery cut-off (including the exchange
of any designation of experts per the Code) has not yet occurred but would
toll between the date of an ex parte hearing and the date of a hearing
on shortened notice per your applicable local rules or by statute, then
be sure in your ex parte to include a request that the discovery clock
be switched off until the court issues its ruling on the continuance.
Otherwise you or your new attorney will need to file a motion to reopen
discovery once the case is continued - assuming that important things
remained undone - usually the case when parties are switching attorneys
on the eve of trial.
In fact, I have seen cases where parties want to change attorneys because
the offer that is on the table is at a substantial discount for how much
or what agreements the case should reasonably be settled for, but because
the weaker party's attorneys messed up the case that party is now
at such a disadvantage that they must seriously consider taking the offer
or doing worse at trial. Strong, aggressive counsel for a powerful party
(usually the "in-spouse") will vigorously try to push the case
to its conclusion before you, the "out-spouse," can catch your
balance. This is a recipe for disaster. By the way, having good competent
divorce counsel from the beginning greatly enhances the likelihood that
your case will be fairly settled and that it will not go to trial - that
is the goal for any sensible person.
Here are my suggestions:
- See whether the side has done everything the law requires of them in formulating
your grounds for "good cause" under Rule 3.1332. If they have
and your attorney failed to also comply, this is not good. If neither
side did what is required to avoid irregularities, then that is better.
If your side did comply but the side did not, that is best and you should
point this out in your papers and in oral argument.
Did the other side comply with all applicable Local Rules regarding trial?
For instance, in Riverside County we have local Rule 5.0053 which mandates
that a Trial Readiness Conference be set before trial, and at least in
Indio that you (or your attorney) sign a form that you understood and
will comply with what those rules require.
Here is a link to Title 5 of the Riverside County Local Rules for Family
Law cases. There may be similar rules in your jurisdiction. Rule 5.0065 discusses
ex parte procedures in Riverside County, which generally includes the
family law divisions in downtown Riverside, Hemet, Indio and Blythe.
- Draft a declaration that establishes good cause for your request - one
that speaks to both justice and procedural issues. Anticipate what prejudice
the other side will claim in opposition to your continuance request. Offer
to ameliorate it if you can, in advance of the hearing on the ex parte.
- Rule 3.1332(d)(10) permits the court to impose "conditions" if
it grants a continuance. These need to be reasonable of course. A frequent
condition "no more continuances." Unreasonable requests may
be that you are asked to waive a fundamental right that is a key issue
in the case itself, i.e., a waiver of spousal support or an agreement
that the court will have retroactive jurisdiction at the trial when it
does occur to reach back and modify support to the first trial date. Offering
to contribute to the other side's attorney fees incurred surrounding
the rescheduling may be appropriate under certain facts.
- Before you file your ex parte, be sure to attempt to "meet and confer"
with the other side in an effort to obtain a stipulation to continue instead,
and in order to discuss how you might minimize their inconvenience and
prejudice and to discuss possible reasonable conditions in advance of
the hearing that would address those issues. Attach any confirming letters
as an exhibit.
- Make your motion as short as possible and author it to read fast - not
more than 10 pages including declarations, points and authorities, and
exhibits. Judges have no time to read long winded stories.
- Be sure to notice all the parties for the ex parte. For instance, if there
has been a Borson motion by either side that attorney (the former, Borson
attorney) must also get notice of the hearing and the paperwork at the
time you set the hearing.
- Hire your new attorney first and have them make the motion (which is costly
in terms of the amount of the retainer they will reasonably require, since
if the motion is denied that attorney knows he may be going into a trial
that will take immediate emergency hours to come up to speed on).
- If you haven't retained counsel yet and just want to continue a trial
"to get counsel," you have a problem. While this excuse might
work at the first hearing on an OSC or regular motion, it is unlikely
to convince a judge who is managing his trial calender.
Good luck with your new attorney!