By Lauraann Wood

Law360 (March 11, 2021, 7:48 PM EST) -- Navigating COVID-19 has left Illinois courts staring down a massive jury trial backlog of both civil and criminal cases, and when trials resume in the coming weeks, state and federal courts will have a tremendous amount of work to do to clear their dockets.

Cook County Circuit Court is seeing its "most significant impact of the pandemic" in both bench and jury trials, according to representatives from Chief Judge Timothy Evans' office. The court hasn't conducted any jury trials since statewide shelter-in-place orders began either limiting or prohibiting in-person gatherings last March.

Chicago's federal court is facing a similar jury trial backlog despite bringing criminal trials back while the state's infection rate was relative low in the fall. Under its latest plan, trials will return to the federal court in early April with several coronavirus safety measures in place, including the administration of COVID-19 tests for jurors.

Both the state and federal courts say their use of virtual hearings to handle matters other than trials has kept the wheels of justice turning as much as possible, but they know there's a long road ahead.

The trial backlog has reached a point where many parties and judges are becoming reluctant to move even the trial dates that were set early in the pandemic, Rebecca Fitzpatrick, a litigation partner with Kirkland & Ellis LLP in Chicago, told Law360. With those earliest dates coming up soon, all of that related work is "coming due, and there's just a real reluctance to moving those dates," Fitzpatrick said.

Both the courts and attorneys are hoping trials can resume as they are currently anticipated, but they know there are no easy answers, she said.

"I'm sympathetic to the judges because they have no clearer view of this than we do, so we all just proceed," Fitzpatrick said. "This is the boat that we're all in."

Cook County recently announced plans to resume criminal jury trials at the end of the month "and is taking extensive precautions to protect the health of jurors, judges, lawyers, litigants, witnesses and other court personnel," Evans' office said. The county is analyzing how it has operated during the pandemic "and will provide that to the public in the near future," the chief judge's office said.

However, while trials remain held up, the Circuit Court's decision last spring to hear cases and resolve disputes through videoconferencing platform Zoom has helped its judges administer justice in all divisions "in as timely a manner as possible while addressing the safety concerns posed by the coronavirus," Evans' office said.

The Northern District of Illinois' use of  technology to handle various matters since early in the pandemic means the backlog it faces is largely tor trials and proceedings that require the parties be together at the courthouse, U.S. District Chief Judge Rebecca Pallmeyer said.

The judge said the district noticed a lag in settlements early in the pandemic. Adopting a videoconferencing platform — the Northern District chose Microsoft Teams — helped "get the wheels turning," Judge Pallmeyer said.

"For now, other than trials, only those proceedings that truly require in-person court hearings face any significant delays," she said.

And the court may still conduct some remote proceedings in the future, Judge Pallmeyer said.

"When things return to 'normal,' for those motions or status reports that are routine and can be addressed briefly, it seems likely that we will rely on our new skills and available technology to streamline proceedings that, in the past, may have required significant travel expense for lawyers," she said. "That said, we hope to return to our tradition of responsive and hands-on case management when it is safe to do so."

The federal court also worked to mitigate other pandemic-induced issues, such as communication backlogs between detained defendants and their attorneys. To address that gap, the court has provided iPads and internet access to detainees looking to privately connect with their lawyers, Judge Pallmeyer said.

That has helped criminal cases progress as well as possible "in an era when traveling to detention centers and engaging in face-to-face conduct is not easy," she said.

At Jenner & Block LLP, the firm is trying to ensure that associates can remotely observe different types of work, such as an out-of-state appellate argument, Debbie Berman, co-chair of the firm's complex commercial litigation practice, told Law360. It's part of Jenner & Block's effort to ensure the younger attorneys can still be exposed to situations they would otherwise have experienced in person, she said.

"That's actually one place where COVID gives us an opportunity where pre-COVID didn't," Berman said.

Yet Illinois litigators say they don't expect the courts to adopt permanently the major adjustments they have had to make to cope with the pandemic.

Virtual depositions, for example, have been both a blessing and a curse for some litigators. On the one hand, remotely deposing a witness removes potentially significant amounts of travel from the process.

On the other, they can be "much more tricky to navigate now," said Timothy McCaffrey, who chairs Eversheds Sutherland's real estate practice. That's because lawyers have to be prepared enough to know not only which documents will need to be shared digitally, but how to navigate the software and share them as well, he said.

"That is something that has been a change from how I practice because I'm old enough that I'm a guy that likes to use paper," McCaffrey said.

Kirkland's Fitzpatrick said she doesn't anticipate that courts in the state will adopt any drastic changes to their post-pandemic processes when it's safe to return to live proceedings.

"Instead, I'd expect changes at the margin," she said, citing steps like preparing for a deposition.

More likely to last are the changes law firms made internally as they shifted to remote work, she and other litigators said.

Illinois attorneys told Law360 the pandemic has forced firms to create new opportunities for lawyers to collaborate and develop professionally since down-the-hall office visits, coffee trips and other occasions that inherently invite such interaction have been off limits the past year.

Berman of Jenner & Block told Law360 that the pandemic-induced lack of those more informal work settings led her firm to implement more formal touch points to check in with associates since "that natural interaction just can't exist in the way that we're used to right now."

Skadden Arps Slate Meagher & Flom LLP partner Charles Smith and others said the shift to virtual meetings has also allowed attorneys to include more colleagues in their work than before the pandemic, when location and travel might have prevented some from otherwise participating in person.

"I'm getting help in ways that I would not have been able to before, collaborating with my colleagues in the U.K. and my colleagues in New York or D.C., because my communications with them are no different now than with the folks who used to sit down the hall from me," said Smith, who leads the firm's litigation and regulatory enforcement practice in the Windy City.

"This is going to be one of those moments where we'll look back and say, 'This is where how we do a lot of things changed permanently,'" Smith said.

--Editing by Jill Coffey.

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