Cook County Circuit Court’s Probate Division sparks strong feelings after returning to in-person hearings, but circuits throughout Illinois continue to search for a balance.

As corporate leaders call workers back to the office, Illinois circuit court judges are resuming in-person hearings by default. Reactions to such orders range from passive acceptance to blunt criticism—some attorneys and clients are clearly reluctant to relinquish the benefits of remote technology.

Yet, judges have their reasons. And so, as all sides advocate for conflicting notions of efficiency and accessibility, the long COVID-19 experiment of perfecting remote work remains ongoing.

In November 2022, the Illinois Supreme Court announced amendments to Illinois Supreme Court Rule 45 endorsing, if not encouraging, remote hearings, especially in civil cases. This followed a formal resolution adopted by the ISBA Assembly in 2021 that encouraged the courts to continue using remote proceedings. But the Court gave circuit court judges the freedom to adopt local exemptions and policies. County courthouses can upload their local rules to the Supreme Court’s “Remote Proceedings by Court” website.

By mid-June, of Illinois’ 102 counties, 80 uploaded local policies that supplement or supplant some of Rule 45’s remote-hearing protocols. (In addition to uploading local rules, each circuit court also can post a link to a website providing more information about remote hearings; only 64 county courthouses have done so.)

A fair hearing

Returning to some in-person hearings in Cook County probate court demonstrates the difficulty of pleasing everyone.

On May 2, Presiding Judge Daniel Malone of the Cook County Circuit Court’s Probate Division issued a general administrative order (GAO) declaring that, beginning May 15, unless stated otherwise, “[a]ll counsel and [self-represented litigants] shall appear in person for their scheduled cases on evidentiary hearings, settlement conferences and trials.” The GAO also included instructions for requesting remote hearings and submitting information electronically.

Almost immediately after Judge Malone released his GAO, members of the ISBA Trusts and Estates Section began a lively exchange about it in their online ISBA Central Community (those with access to the Trusts and Estates Community can view the conversation.) The general consensus was that remote hearings are a win-win by saving time and money for attorneys and clients; so, why ruin a good thing?

A statement drafted by section member and Chicago attorney Robert Held summed up the conflict: “Remote court appearances under Rule 45 should be easy to request and liberally allowed, and courts should ensure that they have removed unnecessary financial and other barriers for case participants to appear remotely.”

A few weeks later, Judge Malone appeared as a guest at the Trusts and Estates Section Council meeting at the ISBA’s Annual Meeting in Chicago on June 8, where he explained his reasons for the order.

“It’s more difficult and time consuming to retrieve and respond to voluminous emails remotely than receiving papers in person. Preparation time on the computer is cumbersome and tedious especially for nontypists,” Judge Malone says. Judge Malone also says many minor guardianship probate cases involve self-represented litigants (SRLs) who often struggle to complete or understand every aspect of a probate checklist. On Zoom, many cases are continued whereas in person, the SRLs can receive assistance from the court’s help desk to expedite their case.

But in a high caseload setting such as Cook County Circuit Court, other issues such as poor Zoom connections, sound quality, and visibility are challenging. However, after one overcomes technical difficulties, he acknowledges Zoom provides greater access to justice for disabled people and working litigants.

“I also understand there are differences of opinion about whether opening estates are evidentiary hearings,” Judge Malone says.

Seeing it both ways

No one enjoys spending a day in court for a five-minute hearing, especially for those who are immunocompromised or face accessibility challenges. Trusts and Estates Section Council member Alyx Durachta of Levenfeld Pearlstein in Chicago says patience on all sides is required.

“While coming back in person for court in Cook County can seem like a hassle when we have the technology to appear virtually, I see both sides,” Durachta says. “Routine matters can easily and effectively be handled via Zoom. On the other hand, I have experienced many virtual court calls where counsel has not properly provided the court with proposed orders, or there are issues with the pleadings. Additionally, it has been my experience that judges find it easier to amend and correct pleadings in open court—in person. This allows estates to proceed more efficiently, without the need for a continuance on the matter.

“One thing that I, and likely many others are looking for is consistency—with receiving letters of office, orders, etcetera,” Durachta says. “As technology advances and times change, so do we. I am appreciative of the court for listening to our concerns. A lot has changed over the past three years, and I believe that we can reach a good middle ground.”

Pete Sherman is managing editor of the Illinois Bar Journal.
psherman@isba.org