My practice is primarily located in Kendall, Kane, and DuPage Counties in Illinois. Most courts in my area are closed except for essential cases until the end of the month, but my understanding is that DuPage may be opening as soon as next week (though, only for Zoom hearings). I have received a flurry of orders from Chief Judges of each of the counties, detailing new procedures for court given the pandemic.
Some of these procedures will ease the transition back, but I’m afraid they do too little to solve the most pressing problem: these counties see hundreds of people through their doors every single day, mostly between 8:30 – 10:00 in the morning.
I’ll discuss the procedures offered, and then I’ll give some of my thoughts on possible solutions.
In the Kane County Civil Division, attorneys are allowed to submit agreed orders through a general email managed by the Clerk’s office. Each order must include a cover letter and any subject motions and supporting documentation. Judges can do whatever they want with the orders.
In DuPage County, the order states that the agreed order should be sent to the judge’s secretary. No other stipulations exist, but, like Kane County, the judges can do whatever they want with the order.
These provisions exist to reduce the number of litigants in the courtroom. There is no direction for pro se litigants, other than to say that they can also take advantage of these procedures. I don’t know how pro se parties will even know about the procedures, but I’ll discuss that more later.
Kane County allows for Zoom appearances/hearings with some stipulations. It must be initiated by the judge or by joint motion from the parties. Everyone must be represented by a lawyer. If witness testimony will be taken, both parties must sign a waiver of appeal on the issue of telephonic testimony. In order to schedule it, counsel shall email or jointly call the civil judicial assistant.
Three days before the hearing, parties need to exchange all exhibits, and two days before the hearing parties must submit all proposed exhibits to the Clerk’s office. Exhibits must be searchable PDF’s, have an index, and include page numbers.
If a witness is appearing to testify, they need to be alone in a secure room with the doors closed (no word on windows 😉). They should have all exhibits available to them, and a strong WIFI signal because the loss of signal is not grounds for a continuance.
In DuPage, the process is less defined. It simply says that at the request of the attorneys they can proceed via Zoom with at least seven days’ notice. Otherwise, contested hearings will be decided without oral argument.
What Does It All Mean?
Kane County has laid out a lot of details about how agreed orders work and the option to use Zoom for hearings. I say ‘option’ because that’s exactly what it is. There is no requirement that these things are used, and because of the relatively high barrier to use, I expect that they will not be exercised much.
The agreed orders require that attorneys jump through a few hoops to get them approved. They require cover letters and attachments, which may not seem like a lot, but most agreed orders are self-explainable and the need for cover letters seems overboard. Many lawyers may not want to do all that extra work, and they may be reluctant to agree with one another on the language in the cover letter for the agreed order.
Further, the judges are not directly receiving the order, the Clerk is. I feel for the poor clerk that has to wade through dozens of agreed orders every day. I mean no disrespect to Kane County, but some of my cases were never continued during the shutdown. Now I’m expected to trust the Clerk to get my agreed order to the judge? I’m sure there will be problems.
Further, the requirements for the Zoom hearings in Kane are also high and unlikely to be used. I especially like how the attorneys are waiving their clients’ rights to appeal based on the telephonic hearing. It pairs nicely with the fact that a poor connection is not grounds for a continuance. That will make for some great appellate arguments.
As an aside, what happens if the judge has Zoom complications? The order says that connectivity issues are not grounds for continuance, but if it’s on the judge’s end that seems unreasonable.
The difficulties in the Kane procedures will make them less likely to be used, which doesn’t really solve any problems.
In DuPage, there are fewer requirements, but until June 5 there are no other options besides agreed orders and Zoom hearings. That means that attorneys will be forced to take advantage of the options. My guess is that we will see a lot of agreed orders and very few Zoom hearings.
In a lot of ways, the DuPage order makes more sense. Email the judge directly, makes sense. Coordinate with the judge for Zoom, makes sense. None of this nonsense about going through a general Clerk’s office email. Much cleaner and likely to be used.
It Doesn’t Solve the Real Problem
Hundreds of people go through the doors of the Kane County Courthouse and Judicial Center every day and thousands enter the DuPage County Courthouse. These procedures will cut down on very few of those people.
We are expecting an aging judiciary to manage Zoom meetings and electronic evidence. Many judges will refuse to handle cases this way or bungle the proceedings. These solutions are rife with issues.
And they still don’t address the issue of the people.
What would I do? I’m not saying that the courts don’t have other solutions. For all I know, there will be new orders this week addressing my concerns, but until then, here’s what I would do.
For starters, I would get rid of the 9 a.m. court call. Most courtrooms function by having everyone show up at 9 a.m. DuPage has been better than Kane about spreading the cases out a bit, but both counties have the bulk of their cases appear at 9 a.m. Governor Pritzker’s current order doesn’t allow for any gatherings, and Phase 3 only allows for gatherings of 10 people.
Why don’t we spread the cases out a bit? Have some appear at 8:30, some at 9, some at 9:30, etc. Suddenly a 40-case morning has only 10 cases in the courtroom at a time.
I also think we can take a few cases off the court docket. Some of these civil cases don’t need to be reporting to the judge every 60 days. Attorneys can motion a case up whenever they want. Now, I am concerned that some lawyers will lose out on billing and, worse still, some simply won’t do any work. But the court is still available to referee the matter. One party can easily motion the case up.
None of this addresses the pro se problem. My guess is that pro se people will not take advantage of any of these procedures and will end up in court like normal. I have no idea how to fix that, but something will need to be done. What if people show up without masks? Will they be turned away at the door? Denying someone justice because of a lack of PPE might not make a lot of sense.
We’ll have to see how it plays out.