May 26, 2020
Long before the COVID-19 pandemic, the Illinois Supreme Court Commission on Access to Justice (ATJ Commission) was investigating ways to increase the use of remote appearances across the state. Remote appearances have many access to justice benefits. For the litigant, remote appearances decrease the time and expense of coming to court (missing work, paying for childcare, finding transportation). Remote appearances also assist lawyers serving large geographic areas to handle more cases and allows judges in rural jurisdictions to hear cases from outlying courthouses without driving between them.
Recognizing its potential for modernizing the court system, the Illinois Judicial Conference (IJC) also included increasing remote appearances as a strategy for achieving the Strategic Goal: Accessible Justice and Equal Protection Under the Law as part of the 2019-2022 Illinois Judicial Branch Strategic Agenda. The IJC asked the ATJ Commission to develop a remote appearance policy for civil cases and examine possible rule changes to encourage the use of remote appearances as well as create an educational plan for judges, court staff, and court patrons to understand and use remote appearance technology.
Then, the COVID-19 pandemic hit, and courts were forced to turn to technology to keep cases moving and to ensure the public had access to the courthouses. The judiciary has done a wonderful job of adapting to this crisis and now the Supreme Court has adopted a new Supreme Court Rule, amended others, as well as adopted a remote appearance policy as proposed by the ATJ Commission.
New Supreme Court Rule 45 allows for participation by telephone and video conferences in civil and criminal cases. Such remote conferencing was previously allowed only in Article II Rules on Civil Proceedings in Rule 185 (now repealed). Rule 45 recognizes that telephone and video conferences can be used effectively and appropriately in other types of proceedings beyond civil cases.
Under Rule 45, courts are encouraged to liberally grant requests to appear remotely and to be particularly accommodating of case participants who face an obstacle to appearing personally in court. Obstacles include but are not limited to distance from the court, difficulty with traveling, military service, incarceration, hospitalization or illness, disability, other health or mobility limitations, work or child care obligations or responsibilities, and limited court operations.
Whether telephone or video technology is appropriate is a determination for courts to make based on each individual case with the consideration of hardship factors (such as not having broadband access or sufficient cellular data plans). Some case participants may appear by telephone, some by video, and some in person all on the same case.
In addition to creating Rule 45, the Supreme Court amended Rule 241 to allow testimony in civil cases to be done by video conferencing for good cause and by telephone conferencing in compelling circumstances. Due to the important considerations relating to hearing live testimony in court, a showing of good cause is required. Good cause is likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident, illness, or limited court operations, but also in foreseeable circumstances such as residing out of state. Good cause may be established where all parties agree that testimony should be presented by video conference. Adequate safeguards are necessary to ensure accurate identification of the case participant testifying remotely and to avoid improper influences by any individual who may be present with the case participant at the time of the testimony.
To provide additional guidance for remote appearances in civil matters, the Court adopted the Illinois Supreme Court Policy on Remote Appearances in Civil Matters. The Policy discusses benefits, basic technology requirements, and guidelines for creating local rules or orders regarding remote appearances. One consideration explained in the policy (and reiterated in the Rule comments for Rules 45 & 241) is about the costs of conferencing services. It suggests to not impose a cost on someone who is not able to pay or would not otherwise incur a comparable cost if appearing in person. Any fees associated with a Remote Court Appearance should be subject to waiver for Case Participants who cannot afford them. If a court chooses to use a service which requires the payment of fees, the court should consider whether the costs can be waived by the service, paid by another party, paid by the court, or if the court should use a free service instead.
Lastly, the Court Services Division of the Administrative Office of the Illinois Courts developed a Remote Court Proceedings – Guidance Document. This document discusses public access to court proceedings, conducting hearings, electronic records, and sample admonishments.
The AOIC is available to assist local courts with the transition to remote appearances for the short-term as well as the long-term. Feel free to contact Jill Roberts, Access to Justice Division, firstname.lastname@example.org; Nathan Jensen, Court Services Division, email@example.com; or Skip Robertson, JMIS Division, firstname.lastname@example.org for help with remote appearances.