December 19, 2024
By Bob Glaves | CBF Executive Director
It is hard to believe that in less than three months we will hit the five-year mark since our worlds were turned upside down by the pandemic.
As we were getting ready to ring in 2021 four years ago, I naively thought we already were turning the corner and my resolution that year was “Don’t Let the Hard-Earned Lessons of 2020 Go to Waste.” I don’t even remember which variant came along shortly thereafter to shatter that illusion for the first of many times, and COVID is still with us today (get your shots!), but this past year demonstrated that we clearly have moved on to an evolving new normal.
Before we charge forward into 2025, all of us in the legal community will do well to take what we learned from the pandemic and its aftermath and commit to using those key lessons to build a better profession and justice system going forward. I’m going to use my premature shot at this exercise four years ago as the format for this year’s resolution, with a slightly modified and stronger game plan thanks to the additional knowledge and experience we gained over that time.
For starters, this excerpt from the intro to my 2021 Resolution still feels pretty on target for thinking about the particular lessons our legal community should take from the pandemic experience:
Along with those things we would like to put in the rear-view mirror—or, in the case of Zoom, use more in moderation—there are many things we should celebrate before turning the page. The perseverance and resilience and the way we quickly adapted to a world of weird no one had experienced before. The way we stepped up to help others…. And the amount of progress our usually hide-bound profession and court system made in such a short time to join the 21st century in the way we use technology was truly amazing.
All of this happened by necessity, and there is going to be a natural temptation to try to go back to what in early March (of 2020) was completely normal. In some instances—like hugging people we care about, traveling, and attending live music and sporting events en masse—that is exactly what we should do. But when it comes to our profession, our system of justice, and the practice of law, we should aim for a better, new normal that builds on what we learned this past year.
With that intro, below are the five components of the resolution. I am going to expound in this post on the first part, with more to come on the other elements in the new year.
Build a Better Hybrid Future for the Courts
The forced shift to remote court proceedings during the pandemic–and the continued use of remote access–has been a game changer for access to justice. Formal evaluations in Cook County, elsewhere in Illinois, and nationally have shown the benefits that many of us have observed firsthand: remote access improves access to the courts for court users and makes legal assistance more affordable and accessible, reducing default rates and enabling lawyers to help more people in need.
At the same time, in-person court remains critical for trials and other significant hearings. There are also other instances where litigants may prefer to appear in person even for more routine court appearances, and individual cases where remote proceedings prove to not work well for the parties or the court (e.g., difficulties using the technology, bad behavior on Zoom, or inability of the parties to move the case forward).
The Illinois Supreme Court struck a solid balance between these considerations with its 2022 amendments to Supreme Court Rule 45. The Rule creates a presumption that lawyers and litigants can always appear remotely for preliminary aspects of their cases without permission, with the corresponding presumption that in-person appearances are expected for trials and other merits hearings, and judicial discretion to require in-person appearances in individual cases where the circumstances in that particular case require it.
That remains the right balance going forward. Without the certainty that Rule 45 currently provides for the remote appearance option for preliminary court proceedings in a case, two damaging things would happen:
(1) it would be impractical to inform litigants when it is and is not an option in their case and we would quickly lose all the benefits of increased participation that remote proceedings have yielded; and
(2) lacking certainty in whether they need to build extra travel and significantly more time into their cases, legal aid lawyers would be forced to take fewer cases and private lawyers would become less affordable and accessible for middle-class people because they would have to price in that uncertainty.
That said, we need to recognize that the shift to remote proceedings has had some negative effects on the practice of law and at times has increased delays in case processing. Lawyers—and particularly newer lawyers—don’t get to know each other in the same way as when we were all in court regularly, and “hallway settlements” don’t happen in the same way when everyone is not there in person.
Recognizing those concerns does not mean going back on the careful balance struck by Supreme Court Rule 45. It does, however, require us to make hybrid proceedings a more seamless part of the court system, where some parties can be in person and others appear remotely, everyone can see and hear each other throughout the proceeding, and all parties have the same opportunity to participate on the record. While most cases move along perfectly well in the remote or hybrid setting, judges also can better use the discretion they are afforded under Rule 45 for individual cases when the parties are not effectively moving the case along with remote or hybrid participation, perhaps having the lawyers or parties appear in person for a pretrial hearing in those instances.
Many courts already are using hybrid proceedings effectively, but it will take a more concerted effort by all of us in the legal community to make that the norm throughout the justice system. The Hybrid Hearings Improvement Initiative at the National Center on State Courts is a great resource as we move forward, and getting this right is one of the most important things we can do to improve access to justice in the new year and beyond.
Hybrid Lawyers Too
Lawyers by necessity during and after the pandemic learned a lot about how we can make our services more efficient and accessible for clients by providing a range of options for accessing legal services that include remote and online services when it is practicable. Lawyers also learned that in-person services are critical for many clients and case types.
With the growth of AI, modernizing the practice of law with these important lessons from the pandemic is more important than ever, and much more on this to come in the new year.
Office Space, Conferences, and Trainings
As I said in my 2021 resolution, just because we could work from home when we had to did not mean the end of the office or the end of in-person conferences or trainings. We humans are social animals, and law is still a people business.
We are seeing that play out with a new hybrid office model taking shape, more lawyers and other legal professionals back in the office more often, and in-person conferences more popular than ever.
As just one example on the conference front, I was just at the eCourts Conference last week—a great conference explicitly about how courts can best use technology to be more accessible and effective—and it was a full house of nearly 1,000 attendees in person that sold out months in advance.
A Commitment to Wellness
Our profession made some great strides in recognizing the importance of wellness during and after the pandemic, but in many ways, the challenges to having a healthy profession have only grown during that time.
The interview I did with noted wellness expert Erin Clifford remains a good practical guide for how each of us can build better habits, and you can hear Erin’s latest wisdom about new ways to think about wellness in 2025 at the CBA on January 21, 2025.
DEI, Racial Justice, and Our Profession’s Leadership Role
Much has happened on the DEI and racial justice fronts since 2020, and more to come on this topic early in the new year.
At the end of 2024, DEI is under attack from many quarters. However, when we define each of the terms of DEI individually, as we have at the CBF (where like many we add in “justice” and frame it as “JEDI”), it is hard to dispute that these are critical goals for everyone in our profession and justice system. Indeed, the CBF reaffirmed our commitment to JEDI earlier this year.
It is the approaches used in pursuit of these goals we all need to evaluate, recognizing that some of the strategies that have been used not only did not advance the ball, they turned otherwise supportive people into critics of the very concept of DEI.
Forward in 2025
One of the quotes I used in my 2021 resolution holds true today: “The pandemic was not the challenge (our profession and justice system) wanted, but it is the challenge we needed to bring the system into the future.” By taking the time to bank that hard-earned wisdom and experience of these past five years, we can do justice to that quote and make our profession and justice system better for everyone as we move forward in 2025 and beyond.
In the meantime, thank you as always for reading my pontifications, and all the best to you and yours for a safe and happy holiday season!