Ill. Attys Hope Virtual Hearings Will Endure Post-Pandemic

By Celeste Bott
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Law360 (March 12, 2021, 4:13 PM EST) -- The shift to remote court hearings during the coronavirus pandemic could bring a lasting end to an Illinois federal court quirk known as the "notice of motion hearing" and other typically brief, routine in-court court appearances that can bog down litigators' schedules.

Notice of motion hearings, for example, are typically set for two or three days after a motion is filed and are used to set schedules, not to argue on the substance of the motion. For those and other crowded docket calls, attorneys fly in from around the country to be heard for a few minutes. A common sight is a row of suitcases is lined up at the back, and in Cook County Circuit Court's smaller courtrooms, attorneys can be packed like sardines.

"It's a really weird Illinois thing," Justin Penn of Hinshaw & Culbertson LLP told Law360. "You have all of these court appearances usually just to set a briefing schedule."

Even for locals, showing up at the courthouse to wait out a packed docket for a routine matter like a status hearing or notice of motion hearing can be inefficient.

"You can spend hours there just based on the timing of things, how long it takes to get in front of a judge," said Brian Salvi, a partner at Salvi Schostok & Pritchard PC. "That's a lot of your morning spent just sitting in court."

The hearings are part of a "long tradition" of providing litigants with face time with judges, Chief Judge Rebecca Pallmeyer of the Northern District of Illinois told Law360. But the process has changed with the pandemic, and the court has done "much more" by way of written rulings, telephone hearings and videoconferencing when necessary, she said.

Holding those hearings virtually has been a boon for litigators' efficiency, and many are thrilled at the idea that the shift away from in-person appearances for routine matters could remain even after courtrooms reopen.

Judge Pallmeyer said she expects some remote proceedings to continue when things eventually return to "normal," particularly 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." Judge Pallmeyer said. "That said, we hope to return to our tradition of responsive and hands-on case management when it is safe to do so." 

But that's not to say attorneys want to keep their appearances virtual across the board.

"Do we need to be in person if we're arguing a motion? You bet," Tracy Billows, the co-managing partner of Seyfarth Shaw LLP's Chicago office, told Law360. "The talking over each other can be controlled better by the judge."

But for matters with no argument and when the parties are setting a briefing schedule, Billows said she hopes the Chicago federal courts reevaluate what makes sense and to handle notice via video or teleconferencing platforms.

"Yes, please take a look at that!" she joked. "One of the things that has always struck me about the [Northern District of Illinois] is how much time I spend in court, with all the hearings and all that's required in person."

Billows recalled a case in Washington federal court where she never met the trial judge because a settlement was reached before trial and everything else was successfully conducted remotely. She said she hoped the Northern District's flexibilities during the pandemic will convince it to "get more on par with other courts."

Britt Miller, the managing partner of Mayer Brown LLP's Chicago office, said there has been improved efficiency and savings passed down to clients now that attorneys don't have to travel when their case is "one of 14 on a 9:00 [a.m.] call."

"It does seem inefficient to fly in for that. We end up trying to schedule other things while we're in town to make the most of that need to travel," she said.

Whatever the courts ultimately decide about whether to keep remote hearings, they should consider a blanket policy across the board for certain proceedings, she said.

"If I'm in court, as a Chicago-based attorney, my opponent may not feel comfortable being on the phone," Miller said. "For whatever reason, for some people there is a perceived advantage that if your adversary is in court, you should be too. Even if we're just going in for a briefing schedule."

Some attorneys told Law360 that it took a few months for Illinois courts to find their footing when it came to shifting much of its business to videoconference platforms including Zoom and Microsoft Teams, but enough time has passed now that it feels more likely that lawyers and judges may be comfortable with them.

"Everyone is more literate now with Zoom, they know how to use it, and we're all more conscious of not speaking over each other if everyone's in a conference room," Salvi said. "And to some degree, I think we've gotten more patient with one another. It's easier to get going and riled up and fired up in the intensity of a moment, but it's a lot harder when you're sitting in a bedroom in your pajamas."

And judges here have been surprisingly accepting of the technology, "as long as lawyers conduct themselves as if they were in a courtroom, and present themselves as if they were in the courtroom," said Tony Romanucci of Chicago personal injury firm Romanucci & Blandin LLC.

For Illinois state courts in particular, conducting hearings through Zoom has been "extremely efficient," Laura Bacon, a partner at Nixon Peabody LLP, told Law360.

"It's not perfect, but it's a huge time saver, particularly for the collar county courts," Bacon said, referring to the counties that border Cook County. "We all know what the traffic is like getting in and out of Chicago."

Virtual proceedings have also provided more training opportunities for younger attorneys, she said.

"Through the ability to attend remotely, junior attorneys can very efficiently increase their exposure to court proceedings while balancing billable hour demands," Bacon said.

Another positive element of conducting hearings through virtual platforms has been the ability to quickly share screens, giving attorneys the chance to include a few slides of a presentation to supplement their argument for a motion if judges allow, Hinshaw's Penn told Law360. That wouldn't be practical if arguing live in a courtroom, he said.

"You can't spend five minutes setting up your equipment for a four-minute argument in person, and most courts don't have the technology for it," Penn said.

Others have been surprised by how effective virtual mediations and settlement conferences have been during the pandemic and hope the practice continues when possible.

"My clients have been impressed, and it's less costly," Billows said. "I'm not flying to wherever the mediation needs to be, and if I'm local counsel, I can listen in and do other work. I'm just there to make sure people are following the rules; it's lead counsel that will argue the settlement positions. So it's much more cost-effective."

Yet virtual appearances for some matters, such as depositions, are more divisive.

"They take longer than one that's done in-person. In some of these larger cases, with particularly long depositions, you have to consider if the efficiencies of not getting on a plane outweigh the inefficiencies that occur because you can't pass over an exhibit," Miller said. "Some people think it's great, other people think it's a nightmare."

But Stephan Blandin of Romanucci & Blandin noted that documents can be sent in advance to the witness being deposed, and any potential hassle of virtual depositions is worth the savings in money and time.

"If you're going out of town for a four-hour deposition, you're two days out of pocket and incurring several thousands dollars in costs," Blandin said. "So it's just a matter of becoming comfortable with it."

In Cook County, discussions have been underway about continuing to use teleconferencing and videoconferencing for certain matters, such as traffic offenses, a spokesperson for Chief Judge Timothy Evans told Law360.

But while some attorneys have been relieved to spend less time traveling and waiting for time in front of a judge, others are eager to get back into the courtroom regularly.

Lew Bricker, a partner at SmithAmundsen LLC who chairs the firm's transportation group, says he wouldn't be surprised if some of the practices Illinois courts adopted during the pandemic stick around long-term. But the recent restrictions have made it difficult to interact with other attorneys, including opposing party's counsel, he said.

"A lot of these informal opportunities only happen because the parties get thrust together at a hearing," Bricker told Law360.

Utilizing technology can make courts more efficient and save clients money, he said, but there's also value in in-person interaction at the Prairie State courthouses.

"I think if any court system reverts to trying to keep people out of the building until they have to be in there, you're personally diminishing some of the system, and diminishing the ability to bring people together," he said.

Bacon feels similarly.

"I don't think I'm alone in saying I look forward to being able to go back into a courtroom and present a motion and make an argument," she said.

Still, given how much economic sense it makes to continue some of these practices, lawyers practicing in Illinois should prepare themselves for a new normal, Salvi said.

"I think a lot of this stuff is here to stay," Salvi said. "I think lawyers who sit back and don't learn how to utilize the technology that is being thrust upon us right now are only going to be setting themselves back."

--Editing by Alanna Weissman.

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