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The need to preserve court access during the pandemic moved hearings online. Remote court hearings are expected to continue – even as the courts return to in-person proceedings. While the transition has raised some concerns related to due process and accessibility, there appear to be some benefits to remote proceedings as well (fewer continuances, flexibility with childcare, avoidance of transportation access barriers, etc.). Several groups have or are beginning to look into the remote proceeding process to understand the costs and benefits it may provide, and in March, the Illinois Supreme Court announced the formation of the Illinois Judicial Conference’s new Remote Proceedings Task Force to examine existing procedures, identify best practices, and make recommendations to ensure remote hearings are effective and preserve litigant rights.

In December, the National Center on State Courts (NCSC) released a report based on observations of eight jurisdictions with 52 judges in Texas during remote court proceedings in April 2021. The court proceedings covered civil and criminal cases at all stages of litigation: pretrial, bench trial, jury trial, and post-trial. The study also tracked court time spent off the bench, unrelated to specific cases, such as general administrative time, training, committee meetings, and similar work activities.

The NCSC concluded remote hearings, on the whole, take up to 1/3 longer than in-person hearings, largely due to technology issues. Technology issues arise because of a “digital divide” among participants, such as access to high speed internet, hardware capabilities, and necessary skills for sharing screens or uploading documents. Technological problems are exacerbated when court staff, who are untrained in tech support, are left to resolve issues and must learn as they go.

The study also noted significant benefits from remote proceedings, primarily in scheduling and minimizing logistical hurdles—such as child care or arranging time off from work—for self-represented litigants. Docket management is more precise, giving litigants a narrower window of time wherein it is necessary to be immediately available for hearings. Attendance at family court hearings and criminal hearings had significant improvement during remote operations. Finally, in response to the disruptions of the pandemic, judges began providing divorce litigants with forms prior to the hearings; with this simple move, “nearly 90% of the self-represented divorce litigants appear[ed in court] prepared and ready to resolve their cases,” where the figure was 25% for in-person hearings pre-pandemic.

Early on in the pandemic, in August 2020, Chicago Appleseed and the Chicago Council of Lawyers, with pro bono assistance from Latham & Watkins, reviewed remote court proceedings in Cook County, focusing on due process implications and equitable access to courts—primarily in criminal proceedings. We recommended clearer procedures to: 

• Preserve the integrity of witness testimony by ensuring Connotational confrontation rights and facilitating private communication with counsel; 
• Preserve the defendant’s right to counsel generally during remote proceedings and their rights to be heard in-person; 
• Ensure remote proceedings are equally accessible to all, whether through language services, accessibility for those with different hearing or visual abilities, and improved tech support with the possibility of public access points in communities; 
• Maintain the public nature of court proceedings; and 
• Understand the loss of humanity, empathy, and immediacy, which can accompany remote proceedings and take active steps to mitigate it. 

The gap between the summer of 2020, when we made our observations, and spring 2021, when NCSC made theirs, has hopefully brought improvements to the mechanics of remote proceedings and has made clear that remote proceedings do offer some benefits to courts, to litigants, and to communities. Improved participation in the judicial process, as well as improved communication with self-represented litigants about the judicial process among them. 

As the NCSC study discussed, self-represented litigants more often present, better prepared, and engaged at remote hearings because of the reduced barriers to access. Judges felt this was particularly true in family law proceedings, including domestic violence cases, where litigants felt safer or more comfortable not being in the room with the other party. Likewise in family court cases, more people are able to participate in remote hearings than in-person ones, which gives judges a fuller picture of the family’s needs and circumstances. While more participants inevitably lengthens hearings, it may improve the quality of justice. When parties feel heard by their domestic relations judge, they are more satisfied and more likely to comply with court orders regardless of the outcome. 

Although people in civil and family court hearings appear to benefit in some ways from remote court proceedings, due process and equitable access concerns remain, particularly in criminal cases, where a person’s liberty and freedom may be at stake.  It is clear there are benefits – such as improved access – that come with remote proceedings for self-represented people in civil courts, as well as for attorneys and court personnel in all courts, but remote criminal proceedings have often been confusing and rushed, can hurt the right to counsel, and may make it more difficult for judges to empathize with litigants. Such concerns regarding the judicial empathy gap in remote proceedings are also implicated in some civil proceedings, including domestic violence, and there is a particular need for training here. 

We appreciate the Illinois Supreme Court’s efforts to address these concerns as courts fully integrate remote proceedings with in-person court going forward. To whatever extent remote proceedings are to continue, clear policies and procedures must be developed to make courts accessible and safe for everyone, while remaining mindful of due process concerns.