What do judges think when trial counsel claims to be 'unavailable?'

So many things have to go right for a civil trial to start: fact and expert discovery completed; trial briefs, jury instructions, verdict form and statement of the case filed; settlement prospects exhausted; motions in limine fully briefed; witnesses lined up; an open courtroom and trial judge at hand; jurors summoned (sometimes prescreened for hardship weeks in advance); and...trial counsel available. Let's focus on the last of these. 

Judges often are confronted with a request for a continuance of a longstanding trial date, frequently at the last minute, because trial counsel asserts they are or will be concurrently obligated in another case in another courtroom. It is a big frustration and tempers can run hot, especially if the same lawyer has raised a trial scheduling conflict earlier in the case. Opposing counsel who have painstakingly scheduled (and paid for) witnesses and made time in their own busy trial calendars are unsympathetic -- especially if they have honorably and with civility acquiesced to earlier delays in the case presented by opposing counsel's calendaring conflicts. The calendar-conflicted counsel argues with unassailable logic that they can only be in one place at a time. Figuratively or literally shrugging, they sometimes report that they are under a court order from another judge to show up in that other courtroom. ("Which court order should I obey, Judge?," they ask.) Add to this mix the pressures that arise from a trial date having been continued for whatever reason four, five or six times already; the five-year statute approaching rapidly; or the case having been granted a preferential trial date with day 120 likewise coming up soon.

One of the features of living in 2025 is that everything seems new and unprecedented, whether it's generative AI or driverless taxis. But this problem -- trial counsel claims to be unavailable and asks for a trial continuance -- is not new. There is law and commentary on the topic going back decades. See, e.g., Fejer v. Paonessa (1951) 104 Cal.App.2d 190, 195 (trial counsel's conflicting trial date of which he was aware when he took on the representation shortly before trial was not a sufficient ground for a continuance.) As a refresher, let's take a look at the fundamental principles involved.  

First, the decision whether to grant or deny the trial continuance turns on context-nuanced and specific facts. It requires judicial weighing of multiple factors and concerns. It is rarely an easy call. Quite rightly in my view, the decision whether to grant or deny a continuance lies within the sound discretion of the court and will not be disturbed in the absence of a clear abuse of discretion. Thatcher v. Lucky Stores (2000) 79 Cal.App.4^th 1081, 1085-1086 (Lucky); but see, Oliveros v. County of Los Angeles (2004) 120 Cal.App.4^th 1389 (Oliveros) (trial court abused its discretion by rigidly enforcing its calendar without adequately considering the bona fide trial conflict and the client's right to a fair hearing.)

Second, judges have a duty to manage their calendars efficiently and to avoid unnecessary continuances. Cal. Government Code section 68607; Cal. Rules of Court, Rule 3.1332(a). Third, a continuance may be granted only upon an affirmative showing of good cause which includes the unavailability of trial counsel for "excusable circumstances." Ibid., Rule 3.1332(c)(2). And there's the rub: are the circumstances "excusable" or not?

Fourth, fifth and sixth: Did counsel act diligently in informing the court and opposing counsel of the conflict? Was the conflict foreseeable or avoidable with reasonable planning? Did counsel attempt to resolve the conflict with opposing counsel informally. For the California Supreme Court's take on these issues arising in a criminal matter with a very busy public defender, see People v. Johnson (1980) 26 Cal.3d 557 (describing the distinction "between chronic conditions and exceptional circumstances [applicable to] the delay caused by the crowded calendars of public defenders.")

Seventh, the critical issue of prejudice. This factor usually cuts both ways. There is the prejudice to the moving party if the motion is denied which may impair a right to effective representation by counsel of the client's choice and, ultimately, a fair trial. But there is prejudice to the non-moving party if the motion is granted including (more) delay, inducing witness availability problems and increased cost. As noted, we often hear counsel explain that they have already had to pay their experts for time the experts took off from their regular work to be available for trial and the continuance, if granted, will result in that money being wasted. And there is the more generalized prejudice that a continuance may impose on court operations and other litigants.

Eighth, the factors under Rule 3.112(d): the proximity of the trial date; whether there were prior continuances; the length of the proposed delay; the court's calendar and case management goals; and the "interests of justice."

Ninth, the reasonable availability of substitute counsel. This is a hot-button issue because clients often have a strong point of view as to whom they want as their first-chair trial lawyer and, also often, that lawyer has done the key trial preparation work. Counsel and clients should understand what while judges will attempt to respect clients' choice of trial counsel, trial counsel's engagement in another trial does not automatically establish good cause for the continuance. Lucky, supra, 79 Cal.App.4^th at 1086-1087. Yet a judge's peremptory statement to the effect "you have a big firm, counsel; find somebody else" may be too glib an answer. Indeed, the trial court in Oliveros was reversed for its order, "You pick one of the lawyers in your office and have them be here at 1:30 this afternoon and we'll start the trial." Oliveros, supra, 120 Cal.App.4^th at 1393 (cleaned up.) 

Often the issue really comes down to whether trial counsel is actually engaged in another trial. To me, "actually engaged" means in another courtroom now and engaged in trial proceedings. And trial proceedings mean picking a jury, adducing evidence in a trial or attending a hearing on motions in limine with the understanding that the trial will commence forthwith upon the last of the motions in limine being ruled upon. Actually engaged does not include a trial date, no matter how "firm," in another courtroom in the future. 

Particularly unhelpful are orders from other judges "deeming" counsel actually engaged when they are not actually engaged. Judges try to be very respectful and deferential to our sibling judges' orders but an order deeming counsel actually engaged in a trial to commence in a couple of weeks is problematic when we have a trial-ready case now. So, too, an order to counsel "not to become engaged in any other trial" before some date in the future. Such orders, in my view, are unfair to other judges who have their own calendar management responsibilities and to counsel who are put to the choice of which court order to follow.

So, what is likely to happen when trial counsel asserts they are not to be available to start trial on the firm trial date on account of a conflicting trial obligation? If trial counsel is actually engaged in another courtroom, many judges will think to trail the present case until counsel's current trial has concluded. Often, that is just a matter of days and it works no great hardship on anyone to endure the short wait.

If that won't work for some reason, then the judge must carefully consider the factors described above and then to make a hard call that will likely disappoint one side or the other. Often if I grant the continuance, I do not make an order that a specific lawyer is ordered to appear for the continued trial date but, instead, I order that the trial will commence on that date and will not be continued on account of the unavailability of any particular lawyer. I admonish counsel, on both sides, to make a Plan B now as to alternative trial counsel and to advise their clients of the court's order.

Here is my advice to counsel: Do not take on more business than you can handle. Your very successful business model resulting in your frequent unavailability cannot become an ongoing problem for the court in its discharge of its case management responsibilities. If you see your trial calendar filling up and a scheduling conflict is likely, then identify other counsel you can count on to try the case in your stead if you are unavailable on account of other trial obligations. Make sure your client understands that there is a risk that you will not be able to try their case if you are jammed up in another trial and the court will not grant a continuance.

Communicate with your opposing counsel early and often if you foresee a scheduling problem. See what you can work out. Do what you can to ameliorate the other side's legitimate prejudice. This is where all that civility will really pay off. Jerks are unlikely to catch a break with the other side. Get with the court as soon as you see that there is a real prospect for a problem. Delay is not your friend; wishful thinking and psychological denial are not a plan. Understand that every subsequent request for a continuance by your side reduces the chances of a new request being granted. So too does the age of the case. And if the case is up against the five-year statute or a trial preference order, anything more than a very short trial continuance is unlikely. Finally, read Oliveros and Lucky to get some further flavor for what courts are expected to do when confronted with "unavailable" trial counsel. Both opinions are very informative. What they teach is that counsel may not get that continuance after all -- and counsel need to be prepared for that outcome.