Following Governor Pritzker’s shutdown order in March 2020, life in the state of Illinois has come to a screeching halt amidst the COVID-19 pandemic, forcing many employees in Illinois to transition into an unconventional work environment while at home. In the mental health world, adapting to the new system changes has presented confusing and frustrating aspects. This article is from the perspective of an attorney from the Legal Advocacy Service in the age of Zoom court. Although there are multiple video conferencing platforms, for the purpose of this article, Zoom will represent them all.

By now most courts in Illinois that handle mental health calls are required to function remotely via Zoom. However, virtual court hearings do not necessarily equate to in-person hearings. One of the biggest obstacles are technical difficulties.

Technical issues are problematic and can adversely affect a respondent’s right to due process. On average, Zoom hearings involve a minimum of six participants: Judge, respondent, respondent’s attorney, assistant state’s attorney, witness, and court reporter. With all participants involved via Zoom, technical issues find fertile ground to blossom, thus making consequences potentially devastating. For example, if an attorney’s microphone is malfunctioning, they cannot make timely objections. As a result, protecting the record for appeal becomes a nightmare. If a witness’s testimony is interrupted because of a poor connection, then a judge can easily miss or misunderstand critical evidence. Justice requires that the judge accurately assess the credibility of the parties in arriving at their decision. Technical issues fetter a fact-finder’s ability to evaluate credibility accurately.

Other technological difficulties lie in the lack of knowledge in muting/unmuting microphones, setting up and joining Zoom conferences and presenting evidence. Try to envision a prosecutor presenting evidence to members of the court via a Zoom conference. Given the confines of the environment, you may find that it’s nearly impossible to fully examine and interpret evidence through a screen, which could have negative impacts on respondent’ cases.

A solution to help with technical difficulties is practice, practice, practice. Most attorneys did not go into their first in-court trial without practicing beforehand. Ask a co-worker to set up a Zoom call in order to review the opening, direct examination, cross-examination, and closing. This “practice session” can determine any potential issues that may be addressed before actually going in front of the judge.

Prior to the hearing, attorneys should prepare their clients for the risks of this new format. Attorneys will have to communicate with each other and hopefully agree to exhibits in advance and redact private information. When talking on the record, they should refer to exhibits by their labels rather than by describing the details.

Another obstacle in Zoom court is maintaining order. There are a number of difficulties that judges cannot necessarily control in a virtual courtroom the same way as the in-person courtroom, i.e. who is physically present, who is using a cell phone, who is talking to whom, who is coaching witnesses, etc. Zoom trials open the door for these infractions. A judge can order a witness not to have any documents or notes in front of them while testifying; however, enforcing this order becomes problematic virtually. A witness can simply ignore the court’s order and there is no way to protect against this. Also, there are no safeguards in place to prevent a witness from reading from a script. In a courtroom, a witness takes the witness box empty-handed. A judge would never allow a witness to testify while holding an outline or script. In the virtual courtroom, the parties are relying on the participant’s word that the judge’s orders will be followed.

A solution to maintaining order in the virtual courtroom is for judges to enter stipulated injunctive orders with common sense protections such as the ban on recordings, witness tampering, and reading of scripts. Such orders may not prevent people from actively choosing to disregard; nonetheless, the orders provide the judge the ability to hold violators in contempt of court if the acts are discovered. Judges can ask to see the room from which the witness is testifying to ensure they are not being coached or using inappropriate notes. Judges might also suggest witnesses wear headphones to ensure against the possibility of coaching.

Another obstacle with Zoom court is court members not being able to see a witness’s reaction to the presentation of evidence nor their physical responses to evidence such as squirming or shaking their leg. A defense attorney’s cross-examination and prosecutor’s closing argument do not have the same effect on-line as they do in the courtroom. The lack of face-to-face interactions eliminates the court’s abilities to have a comprehensive understanding of the cases presented to them.

Some of the problems that I have personally experienced is the lack of face-to-face contact. Prior to COVID-19, I would routinely go to the area hospitals to meet with my clients face-to-face. I had numerous clients ask to see my ARDC card. Now that every communication is on the phone or a video conferencing tool, establishing trust from a person who has a mental illness presents its difficulty. It has been my experience to often have contact with clients’ family members for additional information and to help bridge trust between my client and me.

Oftentimes, clients do not understand appropriate court room decorum, which is profoundly difficult in the new Zoom setting. Prior to COVID-19, I could simply look at my client or advise them to be quiet while someone else is testifying. Now, it is the judge who is admonishing my client when it is not their turn to talk.

There is only so much information that attorneys and their clients can transmit during a Zoom trial. Nothing compares to the real-time interactions with a client on good old-fashioned legal pads. Trials take place in real-time and every second counts. In the Zoom context, an attorney cannot lean over and whisper with his client or defense expert to gather critical ammunition for their cross-examination of a plaintiff or state’s witness. Prior to COVID-19, my clients would write notes which were often used for cross-examination. Now, I have to ask for a breakout room and speak to my client after a witness testifies. While this is better than nothing, having to go into a breakout room adds significant amount of time to hearings.

During the past months, many state of Illinois employees have had to reinvent their day-to-day activities to ensure that work is being done and clients are still being served. There continue to be pros and cons of the virtual court. I can understand why a judge would prefer to have virtual court to in-person court. They have the opportunity to stay in their courtroom on their bench and conduct court with limited persons present and reducing their risk of being infected. Considering health risks to all parties, it may be beneficial to remain conducting Zoom hearings. Whereas in-person hearings are optimal, continuing to practice and applying the recommended solutions listed in this article may reduce challenges and contribute to an overall improved working environment.

Vincent Cail is a staff attorney with the Illinois Guardianship and Advocacy Commission, Legal Advocacy Service, Peoria Regional Office