Personal Injury

Will My Personal Injury Trial Be Postponed?

By David Berg, Attorney

Everything seems to be on track in your personal injury lawsuit. Finally, your trial date is approaching, and you and your lawyer are putting a bow on your strategy and the arguments you're going to make to the jury. Then, just a week before trial is set to start, it gets postponed. Can a trial really get cancelled or postponed at the last minute? Can the defense attorney use postponement as a stall tactic? How many times can this happen?

The truth is that it's fairly common for a civil trial to get postponed, even at the last minute, and trial can be postponed for months. And yes, postponement can happen a number of times, depending on the practices and characteristics of the court and the specifics of your case. Let’s see why this is.

Personal Injury Trials Don't Have Priority on the Court Schedule

The scheduling of trials can get pretty complicated. The first thing to know is that criminal defendants get priority over parties in a civil lawsuit, since criminal defendants have a constitutional right to a speedy trial. So, in states where the same judges hear both civil and criminal trials, a civil trial might get postponed to ensure that a criminal trial is not unconstitutionally delayed. Since personal injury cases are civil cases, if there's a conflict, your trial is going to take a back seat to a criminal trial.

Empty Benches and Trial Traffic Jams

Some states don’t have enough judges to hear all scheduled civil trials in a timely manner. In those states, it is understood that a trial will rarely happen the first time it is scheduled.

Sometimes civil trials get postponed simply because a previous trial took too long, or an inordinate number of lawsuits scheduled for trial failed to reach settlement. Judges and clerks often schedule several cases for trial at the same time, knowing that most of the lawsuits are going to settle. (More: Why Do Most Personal Injury Cases Settle?)

Courts also do their scheduling based on the lawyers’ estimate of how long a trial might last. If the lawyers estimate that a trial is going to last four days, but it lasts two weeks, then all of the cases scheduled for the second week of the trial are going to get postponed.

Postponement Isn't Automatic

Some states have a legal tradition or culture of postponing trials at the drop of a hat, for almost any reason -- including, believe it or not, that the trial is taking place during hunting season. In these jurisdictions, if one of the lawyers isn’t ready for trial, he or she can simply go into court and ask the judge for a postponement, and it will usually be granted, no questions asked. In this kind of court setting, trials can be postponed any number of times, possibly even four or five times.

But in certain jurisdictions, a lawyer is generally not going to be able to postpone the trial simply because a witness is unavailable, or because the lawyer is not prepared. For an unavailable witness, the judge will simply tell the lawyer to take the witness’s deposition and read it or play it for the jury at trial. If the lawyer is unprepared, then the judge might decide that's just too bad for the lawyer (and for his or her client).

"Rocket Docket"

Some states diligently adhere to what attorneys call a "rocket docket,” where judges manage their caseload very closely, and almost never grant postponements. In those states, you might get scheduled for trial eight or nine months after you file your lawsuit, and your lawyer and the defense attorney had better be ready for trial on that day, because postponement will only be an option if there's some sort of emergency situation. And if a postponement is granted, there will only be one. The case will go to trial the second time.

Learn more about going to trial in a personal injury case:

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