I. THE USE OF REMOTE PROCEEDINGS IN CIVIL PRACTICE
The COVID-19 pandemic had an enormous impact on civil litigation in Illinois, particularly by increasing the use of remote proceedings in Illinois circuit courts.
- RULE 45 ENCOURAGES CONTINUED USE OF REMOTE PROCEEDINGS
In 2023, the Illinois Supreme Court codified a new Illinois Supreme Court Rule 45—previously amended in response to the COVID-19 pandemic—and expanded the use of remote appearances in circuit court proceedings.
Generally speaking, under Illinois Supreme Court Rule 45 (hereinafter all Illinois Supreme Court Rules referred to as "Rules"), previously called "Participation in Civil or Criminal Proceedings by Telephone or Videoconferences" and now titled "Remote Appearances in Civil Court Proceedings," case participants in civil matters are permitted to attend court remotely without any advance approval. See Ill. S. Ct. R. 45(c). "Case participant[s]" include not only the attorneys and litigants, but also the judge, witnesses, experts, interpreters, treatment providers, law enforcement officers, court reporters, and others. Ill. S. Ct. R. 45(a). While certain proceedings are exempted, including evidentiary hearings, settlement conferences, bench and jury trials, or those specifically exempted by local rules, Rule 45 has no hardship requirement, and the Committee Commentary encourages courts to apply Rule 45 liberally. Ill. S. Ct. R. 45(c); Committee Comments to Ill. S. Ct. R. 45 (rev. Jan. 1, 2023).
The Rule also includes two provisions that permit courts to require in-person appearances for case types or case proceedings where the option to appear remotely is automatic. First, a judge presiding over a case may require a participant to appear inperson for reasons particular to the specific case, including the failure of a case participant to follow applicable standards of decorum. Ill. S. Ct. R. 45(b)(1). Second, the Chief Judge of a circuit may, by local rule, exempt a particular type of case or proceeding from the automatic option to appear remotely where necessary. Ill. S. Ct. R. 45(b)(2). Case participants may then appear remotely in exempted case or proceeding types only with the approval of the presiding judge. Id.
- RULE 241 PERMITS USE OF REMOTE HEARINGS IN CIVIL TRIALS AND EVIDENTIARY HEARINGS
The Illinois Supreme Court also amended Rule 241, previously titled "Video Conference Technology in Civil Cases," in 2023. Now titled "Use of Remote Hearings in Civil Trials and Evidentiary Hearings," Rule 241 pertains to proceedings that, under certain provisions of Rule 45, require case participants to obtain approval to appear remotely.
While recognizing the continued importance of in-person testimony in civil trials and evidentiary hearings, (see Rule 45), Rule 241 provides the presiding judge in such proceedings the opportunity to, upon request or sua sponte, allow a case participant to testify by video conference for good cause shown and upon appropriate safeguards ensuring the integrity of the examination. Ill. S. Ct. R. 241; Committee Comments to Ill. S. Ct. R. 241 (rev. Feb. 2, 2023). In the absence of video conference services, the judge may, in compelling circumstances, also consider permitting testimony by telephone or other audio means for good cause shown and upon appropriate safeguards. Ill. S. Ct. R. 241. A judge may similarly allow a non-testifying case participant to participate by telephone or video conference for good cause shown and upon appropriate safeguards. Id.; Committee Comments to Ill. S. Ct. R. 241 (rev. Feb. 2, 2023). The Rule further directs judges to "take any action necessary to ensure that the cost of remote participation is not a barrier to access to the courts," including directing which party shall pay the cost thereof. Ill. S. Ct. R. 241.
Rule 241 gives courts broad discretion to determine whether video participation—including video testimony by a witness—and nontestimonial telephone participation are appropriate for a particular case. Committee Comments to Ill. S. Ct. R. 241 (rev. Feb. 2, 2023). In making this determination, courts must balance factors such as the type of case, any due process concerns, the hardship(s) preventing the case participant from appearing in person, any prejudice to the parties resulting from video participation, and any other issues of fairness. Id. "Good cause" includes unforeseen circumstances, such as accident or illness, public health and safety, or limited court operations, as well as foreseeable circumstances, such as distance or disability of the testifying participant. Id.
The Comments instruct that "remote testimony in civil trials and evidentiary hearings must be given the same consideration as testimony presented physically in the courtroom or evidence deposition." Id.
II. SPECIAL APPEARANCES IN ILLINOIS COURTS
The Illinois Supreme Court has created procedures for special types of appearances in Illinois courts.
- OUT-OF-STATE ATTORNEYS
Rule 707 sets out the procedures for pro hac vice practice before Illinois courts and administrative tribunals. Rule 707 allows an eligible out-of-state attorney to appear in an Illinois proceeding without order of the tribunal, so long as the out-of-state attorney submits a verified Statement, pays certain fees, and associates with an active-status Illinois attorney who also files an appearance. Ill. S. Ct. R. 707(a).
Rule 707(b) lists the requirements to qualify as an eligible out-of-state attorney. The attorney must be authorized to practice in another enumerated jurisdiction; must not be prohibited from practice in any jurisdiction due to discipline; and must not have already entered an appearance under the rule in more than five other proceedings during the same calendar year. Ill. S. Ct. R. 707(b).
Rule 707(d) describes the information that must be provided in the verified Statement, including the attorney's contact information; the name of the party the attorney represents; a list of other proceedings in which the attorney has appeared pursuant to the rule; a list of jurisdictions where the attorney is admitted; a statement that the attorney submits to the disciplinary authority of the Illinois Supreme Court and has become familiar with the rules of practice in Illinois courts; and the contact information for the associated Illinois attorney. The Attorney Registration & Disciplinary Commission (ARDC) also provides a sample Statement on its website. The Statement must be served upon the ARDC, the associated Illinois counsel, the attorney's client, and all parties to the proceeding. See Ill. S. Ct. R. 707(d)(1)-(9).
Finally, the out-of-state attorney must register with the ARDC, pay the annual registration fee, and pay an additional fee of $250 per proceeding (except in certain public interest cases). Ill. S. Ct. R. 707(f), (h).
- LIMITED SCOPE APPEARANCES
Rule 13 creates a procedure for limited scope appearances that are permitted pursuant to Illinois Rule of Professional Conduct 1.2(c). The purpose of limited scope appearances is to expand access to counsel for clients with limited resources. The rule is meant to encourage lawyers to take on limited scope representations by providing clear guidance for how to define the scope of a representation and withdraw from the case once the limited representation is complete.
When an attorney has entered into a written agreement with a client to provide limited scope representation, the attorney must file a "Notice of Limited Scope Appearance" that identifies the aspects of the proceeding that are subject to the limited representation. Ill. S. Ct. R. 13(c)(6). A form of the Notice, which may be utilized or substantially adopted by litigants, is appended to the rule.
Once the representation described in the notice is complete, the attorney must withdraw by in-court presentment of an approved statewide form, "Notice of Completion of Limited Scope Appearance," or by out-of-court filing and service of the same. Ill. S. Ct. R. 13(c)(7). The attorney's withdrawal is effective upon execution of either method without necessity of leave of court. A form of that Notice, which may be utilized or substantially adopted by litigants, is also appended to the rule.
Where withdrawal is made by in-court presentment, the party may object on the ground that the attorney has not completed the limited scope representation, in which case, the court must hold an evidentiary hearing on the objection. Ill. S. Ct. R. 13(c)(7)(i). After hearing the evidence, the court must enter an order allowing the withdrawal unless the court expressly finds by clear and convincing evidence that the attorney has not completed the specified representation. Id.
If the attorney chooses to withdraw by filing and service instead, the attorney must append to the Notice an approved statewide form, "Objection to Completion of Limited Scope Appearance." Ill. S. Ct. R. 13(c)(7)(ii). Within 21 days after the service of the Notice and Objection, the party may file an Objection to Completion of Limited Scope Appearance. If a timely objection is filed, the attorney must notice a hearing on the Objection, after which the court must enter an order allowing the attorney to withdraw withdrawal unless the court expressly finds by clear and convincing evidence that the attorney has not completed the specified representation. Id. A form of the Objection, which again may be utilized or substantially adopted by litigants, is also appended to the rule.
To view the full article, click here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
