Access to the Courts Since the Shutdown

In March 2020, as Governor Pritzker’s shelter-in-place order took hold, Illinois state and federal courts were also implementing their own administrative orders. For all practical purposes, access to the courthouse – both state and federal courts – was limited to criminal and emergency matters only, with most civil disputes taking a back seat. Status hearings and trial dates were continued. Completion of written discovery and depositions were also delayed. As one can imagine, the unprecedented delay in proceeding with normal litigation activities has created an enormous backlog of cases.

When Illinois entered Phase 4 of its COVID-19 response, many courthouses instituted re-opening procedures that dramatically altered the way cases proceed. As a general rule, attorneys no longer appear at the courthouse. Instead, in many cases, court appearances are being held by Zoom or telephonically, including status conferences, arguments and even trials.

In light of the continued risk of COVID-19 exposure, depositions are also typically being conducted via Zoom or some other virtual platform. In large part, jury trials – both civil and criminal – have not resumed and may not be conducted until sometime in 2021, at the earliest.

With this in mind, what can litigants expect now that courts have, at least virtually, reopened?

1. Delay. Now, more than ever, patience is a virtue. Prior to the pandemic, the average time for resolving a complex commercial case, from the time of filing to picking a jury for trial, was between 36 to 48 months. Because many state and federal courts were shut down between March and July 2020, the average time for a case to proceed to a jury trial is now expected to increase exponentially.

2. Cases will proceed. In our experience, most judges have been sympathetic to the economic and logistical problems imposed by the pandemic. Because judges are adjusting to the new normal by proceeding with virtual status conferences, arguments, and even trials, the courts also expect attorneys and litigants to become adept in conducting depositions and court proceedings remotely. There will be a learning curve for both lawyers and judges.

3. A push for alternative dispute resolution. Faced with even greater delays in moving cases through the court system, some litigants are instead agreeing to alternative dispute resolution either through private mediation or binding arbitration, or both. While there are no jury trials in arbitration, arbitrations are typically a quicker and more efficient way to resolve disputes. Of course, the parties must agree to submit their dispute to arbitration or mediation.

If you have any questions about commercial litigation, please reach out to any of Levin Ginsburg’s litigation attorneys at (312) 368-0100 or:

Howard L. Teplinsky – hteplinsky@lgattorneys.com
Jonathan M. Weis – jweis@lgattorneys.com
Mitchell Chaban – mchaban@lgattorneys.com
Katherine A. Grosh – kgrosh@lgattorneys.com
Andrew Platt – aplatt@lgattorneys.com
M. Reas Bowman – rbowman@lgattorneys.com
Roenan Patt – rpatt@lgattorneys.com