CBA Record July-August 2021

eviction and consumer debt cases for courts throughout Cook County that would have been prohibitively expensive and logisti- cally complicated were we trying to do all of that in person. AFramework forDeveloping theNew Hybrid Model The starting point for building a new “bionic” justice system is looking at the purpose of the courts. Under the over- arching umbrella of dispensing justice, the courts resolve disputes, right wrongs, and protect fundamental rights and public safety. Within those broad categories, the issues range from simpler, lower-stakes disputes to literally life and death cases and other high stakes matters that can change the world. And regardless of the type of case involved, much of the workings along the way are much more mundane. With that backdrop, the one-size-fits-all model for the court system that we have long operated with does not make a lot of sense. Many, if not most, of the day-to-day functions of the courts lend themselves well to remote, technology-based options. But for evidentiary hearings or trials, the traditional system works well and should remain the default. For the many people who don’t have access to reliable remote technology options or want their day in court, we should not foreclose that option in the new normal. Key factors we should consider in strik- ing this balance include: • What’s at stake? –There is a big difference between a small claimor minor traffic ticket and a complex class action or murder case where consti- tutional issues are involved. – The lower the stakes, the more likely remote access should be the default, or at minimum an option for the parties. • What is the purpose of the particu- lar hearing or transaction? – Even within complex, high-stakes cases, there are far more relatively simple procedural aspects than there are big, contested hearings or trials. – For a status hearing, we should first consider whether we really even need to have it at all. Where the answer

is yes, remote access should be the default option going forward. – On the other hand, evidentiary hear- ings and trials—particularly jury trials —should be in person. • How often do we really need to see someone in person to handle the trans- action or make the decision? – Do we really need to appear in person to file paperwork or for a routine hearing? – Are the courts up to the task of being practical solutions for all lit- igants? – To the extent they are not, this should be a call to action for the necessary infrastructure investment and train- ing rather than an excuse. – Every court should be able to accom- modate remote hearings in whole or part when the matter is otherwise appropri- ate for it. This includes the capability to have remote interpreters, remote witness participation, access to the elec- tronic docket, and electronic recording. – Many courts in Illinois and throughout the country already have these capa- bilities, and there is no reason it should not be standard in all courts. – If one party wants or needs to appear remotely, can the court accommo- date it where others are in the court- room? It should be the litigant’s choice and the fact that one party wants to appear in person should not impact access for others in the case. – Remote access should be an option that is available free of charge to all parties and available through flexible means depend- ing on the needs of the litigant (video or phone options at minimum). Ensuring Remote Court Access to Vulnerable People As much as we know that remote access to the courts works for most people most of the time, for some of the most vulnerable people in our communities – including those without lawyers or with other needs – it can actually be an impediment to access right now. Most of us in the legal community now take for granted that we can work from almost anywhere, because we have access

to a computer or laptop, good Wi-Fi, the knowledge to use all of those tools, and (usually) a space with enough privacy to handle sensitive matters remotely. However, that is not the case for every- one, and it is the most vulnerable people who are most likely to face these hardships. And that is untenable; remote access should enhance access to justice, not frustrate it. Until we have an e-filing system that is accessible to everyday people—and we remain far from that in Illinois right now—there needs to be reasonable alter- natives for people to file cases and receive notices in the proceedings without having to come to court. Courts must provide clear communica- tion and guidance to ensure that litigants know about remote options and how to request them. Finally, there should be remote facilities in the courthouse and with community partners where people without technology access or acumen can get assistance to participate in the process. Charging Ahead to a Better Future We can’t go back to the way things were—it was becoming increasingly unsustainable. But we should not throw the proverbial baby out with the bath water either. As an enlightened private equity execu- tive recently put it in Crain’s Chicago Business: “The goal is not to return to a “normal” that wasn’t working for far too many. The goal should be to imagine, and create, a new normal that is better, fairer, and more just for everyone. There is no going back.” Those words ring true for the courts, our legal profession, and our broader system of justice. Let’s not waste this opportunity to build that better system.

This article is adapted from the “Bobserva- tions” blog on the CBF web- site. You can read more from Bob at chica-

gobarfoundation.org/bobservations.

CBA RECORD 19