by W. Anthony Andrews and Shontia Fox
COVID-19 has drastically changed the way individuals interact. Employees project their voices through face masks, doctors diagnose patients via Zoom, and students shuffle between virtual links rather than classrooms. Legal traditions and customs also have been altered to better protect the health of litigants. For the most part, face-to-face interactions with clients, opposing counsel, and judges are gone, as lawyers must instead participate in depositions and court appearances from their office computers.
Most circuit courts now require status hearings to be conducted remotely. Sometimes, even the judge participates from home, though usually using a virtual background. Parties are encouraged to submit agreed orders in advance to avoid overflowing waiting rooms. In rare circumstances, individuals have been required to be present in open court, but they must adhere to standard pandemic safety measures prior to entering the courthouse.
Routine or motion hearings typically involve only four people: the judge, two attorneys, and a court clerk. Though there are unique challenges to those remote proceedings (muting microphones is a constant plea from judges), the few number of participants has allowed them to continue after a hiatus in the spring. Trials, however, are more unwieldy, with parties, witnesses, jurors, and the public to consider.
All circuit courts suspended jury trials from March through May. When some courts outside Cook County resumed operations in the summer, they prioritized criminal jury trials where defendants were in custody, often installing plexiglass shields throughout the courtroom. Now, though, in light of increasing COVID-19 numbers, those trials are being delayed again. Each circuit court takes a slightly different approach. The 16th Judicial Circuit (Kane County) has mandated that all bench trials (no jury) be conducted remotely, while jury trials are postponed until January 29, 2021. The 18th Judicial Circuit (DuPage County) went further by postponing bench trials until January 4, 2021, with jury trials resuming February 1, at the earliest. The 22nd Judicial Circuit (McHenry County) chose to postpone all trials indefinitely.
Once trials do resume again, at least one stage will avoid any risk of COVID-19 transmission: jury selection. The Illinois Supreme Court recently entered an order allowing civil trial jury selection to be conducted remotely. This avoids dozens of potential jurors, chosen across demographics, sitting in a courtroom waiting to be chosen. Those who lack reliable internet service may be provided an alternative by the court. The temporary rule change does not affect criminal jury selection or any other aspect of the civil jury trial.
Federally, the U.S. District Court for the Northern District recently suspended all criminal and civil jury trials, saying health and safety outweighed parties’ interest in a speedy trial. The District Court will still hold bench trials without restriction as long as out-of-state witnesses comply with relevant quarantine requirements or testify remotely. Other federal court formalities have also been suspended to encourage non-traditional appearances at the courthouses in Chicago and Rockford. Any public gatherings must be authorized by the Chief Judge. Other rules have been placed on hold to minimize lawyers’ contact with court staff.
In the early stages of the pandemic, the judicial system across Illinois was at a virtual standstill. Courts eased into remote appearances and altered procedures. Now, though, most courts have grown relatively comfortable with the process, even for important hearings and bench trials, in order to protect the public while keeping the wheels of justice turning. Whether these changes outlast the pandemic remains to be seen, but for now, our litigators at Ottosen DiNolfo have become accustomed to emailing court staff, arguing motions by phone, and virtually participating in depositions to keep our clients’ cases moving forward.