More Categories

Rule 40 – Calendar; Assignment; Continuances; Disqualification

May 14, 2021 | Civil Procedure, Vermont

(a)Hearing Calendar; Assignments; Trial List.

(1) Subject to the direction of the court, the clerk shall maintain a hearing calendar, copies of which shall be posted on the court’s website and distributed electronically to the attorneys having actions listed thereon 21 days before the commencement of a term. The clerk shall routinely list upon the hearing calendar all actions in which the pleadings are complete or the time for filing the last required pleading has passed. Upon request of a party, the Presiding Judge may at any time advance or specially assign an action for hearing. All actions not advanced or specially assigned will be heard in the sequence in which listed unless previously continued by agreement of the parties or order of court.
(2) During a term, the clerk or the Presiding Judge shall periodically issue and distribute electronically to the attorneys having actions listed thereon a trial list containing a listing of assignments of cases to be ready for trial at a specific date and time. A trial list shall be issued not later than the Tuesday of the week preceding the week in which the first case listed is assigned for trial.
(b)Progress Calendar. Twenty-one days before the commencement of a term, the clerk shall prepare and distribute electronically to the attorneys having cases thereon a progress calendar, listing all actions ripe for dismissal under Rule 41(b)(1).
(c)Continuances.

(1) An action that is among the first twenty cases assigned for trial on a trial list issued under paragraph (a)(2) of this rule, or an action that has been specially assigned for trial, may be continued by agreement of the parties only (A) upon notice to the clerk 24 hours before the time set for trial and (B) if the assigned trial date is less than one year from the date of entry of the action. If so continued, an action shall thereafter be placed on a trial list or specially assigned only upon motion and a showing that the parties are, or reasonably can be, ready for trial. An action listed on a trial list that is not among the first twenty cases assigned for trial may be continued at any time by agreement of the parties, subject to the provisions of Rule 41(b)(1).
(2) A motion for continuance of an action shall be made not later than the opening of the court on the second day of the term in which the action is in order for trial; but if the cause or ground of the motion is not then known, the motion may be made as soon as practicable after the cause or ground becomes known. Ordinarily, the only grounds for continuance after the second day of the term will be the sickness of counsel or parties, the unavoidable absence of a material witness or evidence, or the rulings of the Administrative Judge as to conflicting appointments of trial attorneys.
(3) The entry “continued” shall carry with it an enlargement of all former orders not complied with, executed, or expressly discharged. The court may continue the action on such conditions as to costs and other matters as may be fair and equitable.
(d)Affidavit in Support of Motion.

(1) Motions for continuance shall be accompanied by an affidavit, or a certificate of a party’s attorney subject to the obligations of Rule 11, stating the reason therefor and the time when such reason was first known. If the motion is founded on the absence of a witness, the affidavit or certificate shall state the name and place of residence of the witness; the substance of the testimony which the witness is expected to give, and the grounds for such expectation; and the measures taken to procure the witness’ attendance or deposition, to the end that the court may judge whether due diligence has been used for that purpose. If it is claimed that the witness is unable to attend court by reason of sickness, an affidavit of a reputable physician will be required, stating the disease, and the measure and character of the disability, and the probability of the witness being able to attend at a future term.
(2) The party objecting to the continuance shall not be permitted to contradict the statement of what the absent witness is expected to testify and the grounds of such expectation, but may by leave of court by affidavit or certificate, disprove any other fact stated in such affidavit or certificate. The court may refuse to continue the case when satisfied that such evidence would not be material on the trial, or is merely cumulative, or if the adverse party will admit for the purpose of the trial that the absent witness would, if present, testify as stated in the affidavit or certificate and will agree that the same shall be received and considered as evidence on the trial in like manner as if the witness were present and had so testified; and such agreement shall be in writing at the foot of the affidavit or certificate and signed by the party or the party’s attorney. The party consenting to the use of such affidavit or certificate may controvert the statements contained therein, or may impeach the witness the same as if the witness were present and examined in open court. The provisions of this subdivision shall apply, with necessary changes, when the motion is grounded on the want of any material document, thing, or other evidence.
(3) A party shall not be entitled to a continuance on the ground of the absence of a material witness whom it is in the power of such party to summon, except when such witness is sick or otherwise disabled from attending court, unless the party shall have caused such witness to be regularly summoned to attend.
(4) Engagement of counsel in other trial courts will not be considered cause for continuance as a matter of right.
(5) Affidavits or certificates for continuance and in opposition to such motion shall remain on file.
(e)Disqualification.

(1) A motion for disqualification of a judge shall be made no later than the opening of the court on the second day of the term in which the action is in order for trial; but if the cause or ground of the motion is not then known, the motion shall be made as soon as practicable after the cause or ground becomes known. A motion which is filed in violation of this paragraph shall not for this reason be denied but may, in the discretion of the court, render the attorney or party subject to sanctions.
(2) Motions for disqualification shall be accompanied by an affidavit, or a certificate of a party’s attorney subject to the obligations of Rule 11, stating the reason therefor and, if the motion is made after the second day of the term in which the action is in order for trial, when such reason was first known.
(3) The judge whose disqualification is sought shall either disqualify himself or herself or, without ruling on the motion refer the motion to the Administrative Judge for Trial Courts or a designee thereof. The Administrative Judge or designee may refer the motion to another judge for decision or may rule on the motion even if the Administrative Judge, or the designee, is the subject of the motion but only if that judge cannot refer the motion to another judge for decision.
(4) A judge who has been determined to be disqualified by the terms of Rule 2.11 of the Code of Judicial Conduct for any reason other than personal bias or prejudice concerning a party may disclose on the record the basis of the judge’s disqualification and may advise the parties and their lawyers that they may consider, out of the presence of the judge, whether to waive disqualification. If, following disclosure, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. If the parties and lawyers do not agree to waive the disqualification, the judge shall immediately withdraw from the proceeding or, if a motion for disqualification has been filed, immediately grant or refer the motion.

Vt. R. Civ. P. 40

Amended Feb. 15, 1977, eff. March 1, 1977; Oct. 30, 1979, eff. Dec. 3, 1979; Nov. 24, 1979, eff. Jan. 1, 1980; Dec. 11, 1980, eff. Feb. 2, 1981; Nov. 9, 1987, eff. March 1, 1988; Dec. 9, 1988, eff. March 1, 1989; Feb. 22, 1996, eff. July 1, 1996; Aug. 17, 2010, eff. Oct. 1, 2010; Aug. 30, 2011, eff. Oct. 31, 2011; amended Sept. 20, 2017, eff. Jan. 1, 2018; amended Feb. 10, 2020, eff. April 13, 2020.

Reporter’s Notes-2018 Amendment

Rules 40(a)(1) and (b) are amended to extend their 20-day time periods to 21 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporters Notes-2020 Amendment

Rule 40(e)(4) is amended to update the cross reference to the Code of Judicial Conduct 2019, which became effective October 7, 2019.