Episode 116: Mary Jane Theis

Judge
Written By Third Boxcar LLC
00:54:01
 

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Show Notes

Illinois Chief Justice Mary Jane Theis joins host MC Sungaila to talk about the impact of the pandemic on the judicial system and the use of technology and the need to enhance access to the court system. She also explains how to write effective appellate briefs and present oral argument that is helpful to the justices in deciding cases.

 
 

About Mary Jane Theis:

Mary Jane Theis was born in Chicago. She received her bachelor's degree from Loyola University Chicago in 1971 and her law degree from the University of San Francisco, School of Law in 1974. From 1974-83, she was an Assistant Public Defender in Cook County.

Chief Justice Theis has served at every level of the Judiciary in the State of Illinois. In 1983 she was appointed an Associate Judge in the Circuit Court of Cook County, where she served for five years. In 1988, Chief Justice Theis was elected to the Circuit Court, where she was assigned to both the Criminal and Chancery Divisions until 1993, when she was appointed to the Appellate Court, First District. She was elected to the Appellate Court in 1994. When Chief Justice Thomas R. Fitzgerald retired in 2010, the Supreme Court appointed Justice Theis to fill his vacancy on the Court. She became Chief Justice of the Illinois Supreme Court on Oct. 26, 2022. 

In her 17 years on the Appellate Court, Chief Justice Theis served as a Presiding Judge. She was Committee Chair of both the Committee on Judicial Education and the Committee on Judicial Conduct of the Illinois Judicial Conference, and a member of the Supreme Court Rules Committee. Chief Justice Theis was President of the Appellate Lawyers Association and the Illinois Judges Association, as well as President and founding member of the Illinois Judges Foundation. She has been a member of the Board of Governors of the Illinois State Bar Association and the Board of Managers of the Chicago Bar Association and is a member of the Women's Bar Association of Illinois.

Chief Justice Theis’ honors include the American Constitution Society’s Legal Legend Award, the CBA’s Vanguard Award for recognizing persons who have made the law and legal profession more accessible to and reflective of the community at large, the IJA’s Celebrating the Achievement of a Judicial Icon, the CBA’s John Paul Stevens Award, the Juvenile Justice Initiative’s Champion of Children’s Rights Award, the WBAI’s Esther Rothstein Award for her vision, contributions and assistance to women in the legal profession, and the Illinois Bar Foundation’s Distinguished Service to Law and Society Award.

She is married to John T. Theis, and they have two children, Jack (Uma Amuluru) and Claire (Joshua) Merok, and seven grandchildren.

 

Transcript

On this episode, I'm very pleased to have the new Chief Justice of the Illinois Supreme Court Mary Jane Theis. Welcome. 

Thank you. This is a delightful opportunity to speak to women lawyers and future leaders in our profession.  

I'm so interested in your career because you've had a long career on the bench in many different roles. It would be interesting to explore that from the trial bench now to the Supreme Court and now Chief Justice of the Supreme Court of Illinois. First, I'm interested in how is it that you decided to go to law school and become a lawyer. 

Everyone has their own stories, and mine sounds simple. My father was a judge. That should answer everything. I knew from birth that this would be my path, but of course, that's not true. Before my dad was a judge, he was a state legislator here in Illinois from the time I was born until I was in high school. The background of my life was discussions of public issues of the moment. The big issue of the time was civil rights. 

In my home, this discussion was happening all the time because these were the issues my dad was dealing with. Also, a lot of talks were about laws, what laws do, how laws can right wrongs and big ideas about injustice. Big powerful ideas were going on in the background of my life. By the time I was in high school, my dad became a judge. As I had gone to the state capital and watched the state legislature in action, I would often go to his courtroom and watch what happened there. 

At that point, the big issues of the day at the Warren Court were issues about the Fourth Amendment, the Fifth Amendment, and the Sixth Amendment. Regular people were talking in the sense of constitutional rights all the time in the newspapers, the media, and everything. I would then go to his courtroom and see these big ideas, and then I would see the criminal defendants in front of him who were individual people, most of whom at the time were addicts. I see their suffering and I try to internalize what all of this meant, these powerful ideas about justice, the way our court system does or doesn't work, and then how our ideas about law affect individual people. 

I took all that stuff together, and then also noticed that the people who were presenting these big issues to my father and his role on the court being a judge were great lawyers. To sit back and watch great lawyers and learn great lawyering, you could take all this intellectualism, passion, and sense of justice, and make a change in people's lives. I thought, “I want to do that.” That's a long story. It sounds easy. It sounds like a straight path, but all of that brought me to the place where I knew I wanted to enter into this profession. 

As you said, it seems like the simple story is, “My father was a judge, so it made sense,” but as easily, you could have become a legislator. My father was that too, but it's what attracts you or appeals to you with the law, and that was in the courtroom and the judicial role. You’re applying those big ideas, concepts, and legislative aspects to real people, and that how impacts their lives. 

There was a time I thought about a political future. I knew public service was going to be a part of my life, and then I was exposed to that so I thought about that. I'm awfully glad that I chose this branch of government on so many levels. The way we talk is different from legislators talk. We do talk about important big and powerful ideas that we're all committed to. 

Certainly, at that time, institutions generally are being questioned. There was a lack of trust most specifically in the court system. It was very disturbing. What's always drawn me to this area is that there is a deep-level consensus among judges of the value of what we do that you don't see in the gamesmanship of politics. Ultimately, I'm very pleased that I chose the path that I did. 

The justice system has been questioned for its lack of trust. Still, this brand has a deep level of consensus among lawyers and judges you don't see in the gamesmanship of politics.

Seeing great lawyers in action is inspiring. Seeing great trial and appellate lawyers, there's something about that makes you want to say, “I want to do that.” That's an important role to play in the whole court process. 

I started out my career as a trial judge, but I've been in the reviewing courts now for about three years. I'm surprised at that turn in my career. The intellectualism of appellate work versus being in the trial court dealing with individual people's problems, I thought that would be my path. It took me a while to adjust to the pace and the quiet. 

I usually play classical music all the time because it's so quiet when you're reading and writing, looking out the ivory tower and thinking big thoughts. It’s very different from the world I thought I would be in as a lawyer and as a trial judge. Surprisingly to me, it’s how exciting the world of the intellectual part of the law is. I found out how law evolves. It’s the twist and turns in each one of our careers. I'm awfully glad that I ended up here in the ivory tower. 

I was going to say it is so different between being a trial judge and being an appellate judge with just the process. There are also a lot more activities, and a lot more people coming in to see you and all of that when you're on the trial court. That is an ivory tower monastic element to being on the appellate bench. That can be a tough adjustment. 

It’s a tough adjustment and a very easy way to lose sight of the human element of what we do. I can think of issues where I've been agonizing about what's the balance between this and that. My eyes opened and realizing that I missed the whole big picture because I had forgotten the impact that one way or the other would affect not only the litigants. The difference in appellate work is this long-term rule-making, things we can't see, people we don't know, and issues we can't anticipate. 

It can be very easy to get into the abstraction of it and lose sight of the impact of our work. I try in many different ways to be involved in issues through the bar associations. I teach a lot. I do a lot of things like that so that I can get out of the ivory tower and speak with people, lawyers and litigants, and understand their stories. That's important to me. 

As an appellate lawyer, one of the things that appeal to me about doing this work as opposed to trial court work is the potential for impact. You have a published decision that affects your client in that case, but also sets standards for a number of other people who weren't your clients. It’s this ripple effect of the work that's much more immediate than if you were to win for the individual at a trial. 

There's a benefit to that, but then there's the concern of being on the bench of, “That's the impact of our decision-making.” We want to make sure we have this set of facts, this record, and these particular parties in front of us. Whatever we say is going to be applied in a number of other contexts. We want to make sure we're thinking about that when we're crafting a rule or deciding a case. 

I'm going to share a judicial secret with you. What keeps judges, especially appellate judges up at night is the concern and fear that adopting a rule that makes sense in this specific case has unintended consequences on other matters. As they say, things that haven't even happened yet. If I interpret this word in this statute a certain way, how is this word used elsewhere in other statutes and what harm am I doing? 

If I ever had a say in a tip for appellate lawyers, it would be to realize that's what the judge is thinking about. What are the unintended consequences of deciding this case a certain way? How do you ease the discomfort the judge has? How do you make the judge comfortable to say, “Yes, that’s the good rule here, and good rule moving forward too?” Very often, good appellate lawyers understand that, but many lawyers who do appeals are still just focused on their cases. 

Those aren’t the facts of our case. 

The court is looking way beyond this case. I sometimes think about the idea of judicial perspective. The lawyers come into the courtroom, stand at the podium, face the court, and make their arguments. By definition, the court is looking at the lawyers, but then way beyond the court, who are the people in the courtroom and way outside the doors? 

The judicial perspective has a very different idea than what the lawyers are trying to do to win this case. Lawyers who understand that, and there certainly are wonderful lawyers who can be better advocates, can win more cases if they put the judges' minds to ease that this is a good rule for everybody moving forward and not just this case. 

I think our role as advocates and by extension, what the courts are concerned with too, is you're worried about the stream of the law. I think of the law as this stream moving along. Our case comes along and a rock is going to get dropped into the stream. Why does it make sense that it should be dropped here? Is it going to change the direction of the stream? If it does, is that okay? Is it not going to change the direction so you're not concerned about future cases? I think about that as my visual when I'm thinking about approaching a case. 

That is great. I'm going to internalize that. I'm going to think more about the stream of the law and how it evolves. It processes itself and if you're thinking about it, the process itself is extraordinarily interesting. Our common law system arises from certain facts but always moves forward. I like your stream idea. Do you mind if I steal it and use it again next time I talk to an appellate lawyer? 

That's okay. You can borrow that. That's how I think about it. I've thought about it that way for a long time. That's what we're doing. That's what the court is doing. That's how we need to look at it. I’m glad you liked that. I've got the right approach then. I don't know if that comes from the clerkship that I had early on. I'm thinking about that from that perspective because of that or that's just an intellectual curiosity that I have about the law and where things should fit in also. That is a good point about the judicial role in terms of there are a lot of other cases and circumstances that are going to come in front of you, and you need to be thinking about those, as well as the one that's right there now. 

You mentioned clerkship. I did not have a clerkship. I was a public defender, so I was in the trial court trying cases. That was an incredibly important experience in my life. I have been fortunate enough all these years now to work with wonderful clerks, brilliant legal minds, and creative thinking. Lawyers should understand that we read your briefs and we read the cases you cite. That's where we start and then we go from there. 

One of the things that they add is this big vision idea. They go way beyond the case immediately in front of the court. One of the wonderful aspects of having clerks is to have been surrounded by people with high energy, a love of the law, and real intellectualism, but the best is when I have brilliant legal insight. I spit it out and it's like, “This is going to be fantastic. This is going to clear up this whole area of law,” and then the clerk goes, “No, that doesn’t work.” You go, “All right. Thank God.” 

We have the guardrails of somebody. You mentioned you were a clerk. I now realize that the opportunity to be a clerk is can be so important in the development of a person being a lawyer. They understand the decision-making process from the inside. They can see what brief writing works and what doesn't. The best clerks are those who have the confidence to say to the judge who's come up with this brand new theory, "Sorry. It doesn't work." 

The best law clerks are those who have the confidence to stand up to a judge and say which theories will never work.

It's good to have that. It keeps you grounded. You're like, “I had this great idea.” “Yes, but here's why that's not going to work given the case law and where things are going.” I sometimes have those great ideas too, and others have to bring me down and advocate like, "How about this?" As an advocate, I look at our job as if we go down one road and it's a dead end, and that's okay. We back out of that and try another one. Because we're advocating for a particular result, we see which way makes sense, which way is effective, and which way goes with where the law is going. 

It also makes sense in our case, but to not give up when you first have that first challenge. I think of that too in terms of what makes sense overall in the law. That might not be the avenue to talk about or the principle that is relevant, but we can look in another direction and test it, and make sure that we've covered everything. As an advocate, I feel like we have to do that. To your point, the court does that too. 

I always think about the difference between trial and appellate. Often, if the opponent does not mention something or argue something in the brief, that means very little to what's going to happen in the end because I have confidence that the clerks in the court are going to do their own work and investigation so I have to be very thorough. It doesn't end there because somebody doesn't cite a case. 

I'm sure you have seen opinions that come down in one of your cases and you say, “What case is this? This doesn't look like my case. How did we get here?” That's absolutely true. It happens all the time when the court sees something and wants to talk about something. Maybe that was not the way the lawyers framed it, but the court is going to answer the question as the court thinks is appropriate. I do believe in our system where the lawyers participate in the evolution of the law. This is not just about judges, in my view. It's not just our thing where we make the law. 

The lawyers are participating in the discussion. How the lawyers see the issues, the angle, and the new way of thinking as you've suggested is part of the answer. I find that at the Supreme Court level, we have wonderful lawyers. We have many lawyers who are practicing in the Supreme Court. Certainly, I served seventeen years on our intermediate Court of Appeals in our appellate court. I saw a range of lawyering. I had cases through the years where I wish they were longer because I didn't understand. The lawyers so often seem to be talking to each other, maybe in the language of their own areas,  

There are some areas of the law where people practice in workers' compensation or insurance law or whatever. They talk up and back to each other as if the court is not in the conversation. When that case comes to me, I can't walk away and say, “I'm sorry. I don't know what you're talking about.” I have to try to figure out what's going on. Often the lawyers have their own expertise that they're not sharing with the court. I find that very troubling. 

One of the things I learned early on in joining the reviewing courts is I don't know everything. Often the lawyers who come are experts in their worlds. They understand that if you use and instead of or, it's going to entirely shake out the whole area of law. I don't necessarily know that. I can't know everything about every area of the law. 

The court needs to have confidence in the lawyers as they present their cases, but I have learned through the years. While I can't master every area of the law, I can be good at appellate practice. I have my own expertise in that part of the process and therefore, be able to use what I know to be able to resolve the issues. It weighs on the lawyers to see their role in this larger picture. 

There are two things from that. One is our system and how evolves the law on a case-by-case basis that allows both the judges and the lawyers to have a role in that development. It's important for the lawyers to remember that they have a role in working together in that development, but also the point about specialized judges. To some degree, some trial lawyers and appellate lawyers we're still generalists on the subject matter. We know our area well. Today we're working on this kind of case and tomorrow we're working on something else or even this afternoon. 

That to me is what makes it interesting. It's always changing. We're always in cutting-edge areas where the law is evolving. It could be very different but I have found that too where there are a lot of people who are specialized. They work with each other whether it's bankruptcy, patent or whatever. There are areas where they have their talk. They understand each other, and part of my role is to get them to translate it down to a more generalist way. 

“Could we ratchet that down a little bit more on the language?” “Nope. That's not enough. I am still not understanding it. We need to do that because you're not talking to somebody who does your area of the law all the time. I can't even understand what you're telling me so we need to explain this a little bit differently.” 

When you do this kind of work for a while, I start to see the law as an organic whole. Whereas I think lawyers have certain kinds of practice that you see. Personal injury law is what you know, but because we're generalists, you start to see bigger ideas that cut across every type of law, including criminal law. Certain values are there over and over again that we keep going back to. 

As I say, when in those areas where I feel like I will never know as much about bankruptcy or patent, I can't imagine. I would never know enough about one of those specific topics, but I do know a lot about how our law evolves and the values that we hold onto as we do that. That gives some level of comfort that I could at least be part of the discussion. 

Having served at so many different levels within the court system, and having deep experience in that regard, you've accumulated that very broad perspective about the law overall, and that helps you in deciding specific cases in areas. You have that broad overview and perspective, both from the trial court, intermediate, and now the Supreme Court. There's a lot of value in having the trial court experience, as well as the trial litigator experience to keep in mind. 

An issue arises about a jury, for example. I know what it's like to deal with juries. I know that you've got 12 or maybe 14 people who are of good heart and good faith. They are there as volunteers who truly believe they're doing their duty as Americans and want to get to the right answer. They are also worried about what time they're going to be able to get home to pick up their kids from school. They're worried about whether lunch is served. They got all these other things going on in their lives. 

As a trial judge, I felt like a hostess. I wanted them to be comfortable. I wanted them to understand what the day was and how it was going to go. Let them know that they can call their family and let them know what's going to happen, all that kind of thing. Now, when I handle a case about a jury, I'm picturing those real people, their high ideals, and also their practical concerns. It's not an abstract idea to me. I've been there. I've seen it happen. I've seen their concerns. I'm very pleased to be able to do what I do now. 

I've seen the trial court. I’ve heard lots of criminal cases and lots of jury trials. I’ve also heard of complex civil litigation and class actions. All of that experience very much helps me when I look at a record, for example. I know what it's like to have a court reporter in the room where everybody's talking at the same time. I've seen that happen. I see how the court reporter is trying to be as fair as possible to get everybody's voices down. 

I've seen how the judge sets the tone in a courtroom when the judge is respectful, calm, and accommodating to everybody, which filters down throughout the lawyers. I also have seen where judges lose control at the trial court. What happens when we see those records on appeal is a completely different thing. My experience of having worked at each one of those places, I couldn't do what I do without it. 

It's good to have people with different experiences coming to the court as well, so each of you is contributing and contributing your own experiences to the decision-making process. What kind of particular advice beyond what you've already talked about would you have for those who are arguing or writing briefs to your court or a court of highest last resort in a state? 

Writing is key. When you picture the fleeting moments of an oral argument, I don't want to say the judges have made up their minds when they go into oral argument, but they've prepared. They've read everything. They've thought about it. They've probably talked to the clerks and asked for more research. By the time you get to the oral argument, the court is deeply involved in the case and understands the issue. 

People say, “Does that change your mind?” It probably doesn't change your mind and the result. I've certainly seen it where it has changed focus, “I thought this was the important issue and also now, I realize this is an important issue,” but the real communication between bench and bar happens in the writing. The one area that the lawyers I see are probably the best, but what I've seen over the years and the advice I would give especially to newer lawyers who are doing it is to start out focusing on the issue. What is the issue in this case? 

I say that because when you read opinions, and I know you do, there's always a paragraph. The court writes, “The issue before us is here. We are asked to decide here. The question is this.” That's our focus. but I have certainly seen cases where it's not that clear. “The issue is my client should have been granted summary judgment.” That doesn't help me. I think about law school and most law schools now are still teaching IRAC, Issue, Rule, Application and Conclusion. If you read most opinions, that's how they're written. That's how judges write. 

I know that this all seems like a long time ago that we learned this in law school, but that would be very helpful if lawyers thought about that. What is the issue? Start there and then the rest flows from there. In terms of writing that would be my main advice to people. As I say, making the court feel comfortable with the result. Why is this good? Maybe it's good for your client, but why is this a good result? I think the lawyers that can help the court get there do great service to the court. 

How you write demonstrates to me as the consumer of the writing whether you have faith and confidence in what you're writing. I've taught legal writing a number of times. One of the things I always say is, “Do you remember back in fifth grade you learned about helping words, adjectives and adverbs? If you say that your position is the correct one, my question is, why do you have to tell me clearly? Why do you think you need help and those helping words?”  

You need powerful verbs specific to now, but that kind of writing is right, clear and forceful, demonstrating your logic. I'm a big believer in topic sentences. I'll see a brief out. I'll throw out my hands and say, “I don't get it.” I'll go back and say, “There is no topic sentence in it.” Writing is key to appellate work starting with what is the issue? What question do you want the court to answer? That would be my primary advice. 

What question and then what do you want the court to do about it? It’s the flip side of that. 

What is the relief you want? What do you want from this? I'm working on a bunch of cases right now where I keep thinking, “Do you want this resolved?” It's going to postpone any kind of resolution of any issue. Is this good for anybody? Are you just picking an issue because you can intellectualize it for a moment? What do you want out of this? What is the question and what do you want? How do you make the court feel good about deciding it? 

I can help you too as the advocate in narrowing down and selecting your issues. Theoretically, that's a great argument or legal argument. What happens as a result of that? Is it something I want? Is it helpful or effective? If not, we'll raise some other issues and not that one. 

My first case on the Supreme Court was a personal injury case or class action, a product liability case. There were nineteen issues raised. At first, my thought was, “I can do that. I'll work through the nineteen,” and then it took me a while to get a step into it. “What is wrong with this? There's something wrong with this perspective of nineteen different arguments. Maybe you don't have confidence that you have a powerful winning argument here.” Eventually, I was able to find some preliminary ideas that would resolve the case so that it wasn't necessary to go through all of that. For the lawyer to sit down before you start to write and have an idea of what the question is. What do you want the court to do? I think that is key. 

The issue selection, as you mentioned, is not nineteen issues. That can be tough because you have the sense of do you believe in all of these equally or how these all interrelate. I know sometimes in briefs, I'll give direction that way, “This one will get us judgment and you don't need to read any of the other issues. Do you agree with us on this?” “We're good. We're happy. We'll take that.” “If you don't, then here are some other issues with different dispositions.” I think about it that way sometimes. It's helpful in terms of how many of those. If there are a few issues or no more than 4 or 5, usually maybe 3. It’s at the outset that you're at least signaling how you believe and that you've thought about how they all interrelate in the order of them. 

When I wrote that case and it was released in some of the bar journals and things, there was a commentary on that case and there were some comments about how the court had ducked seventeen of the issues. I sat back here at my desk and I thought, “Yeah.” 

That’s because it's not necessary to reach those because I reached this one. It's all how you frame it. What kind of advice would you give to those who might think that they would want to join the bench at some point? 

You have to think about the fact that being a judge is a public position. It's public service. The fact that you have great skills and you're a wise person in and of itself is not going to get you between here and there. That's why I do believe that participation in whether it's the organized bar or teaching, getting involved in committee work through the courts, pro bono leadership, and demonstrating other kinds of qualities other than the fact that you're a smart person is important too. 

I suppose your profile is one way to put it, but thinking about what judges do, they do a wide range of things. It's not simple. They're thinking about policy. They're thinking about the impact of their work. Someone who has experienced the profession deeply beyond just their office, writing their briefs or whatever, those are qualities that are very important in preparation to being a judge. 

We are so fortunate in Illinois, but this is true in most states, that there are opportunities for young people to participate in the policy-making of courts. Other places, for example, have a very active Access to Justice community where they work not only on pro bono cases or not only in volunteer for cases but also take leadership in how our policies work in our courts. A big issue right now is after COVID, and we hope this is receding, what will we do about remote hearings? 

They worked great during the pandemic. What do we take from that? Do we continue to have all remote hearings? Are we losing something the way that we've traditionally had courtrooms where there's a sense of awe of the law and that kind of thing? What I'm seeing is younger lawyers stepping forward in ways of leadership on issues that affect policy in the court and the courts across our state. 

Those things are important for young people to realize that just being a great lawyer is not the entire answer. It's not the entire answer to what it means to be a judge. I would certainly urge someone interested in the bench or who is interested in the bench to participate in the legal community in different ways. 

I like the way you frame that because, in my experience, it makes a lot of sense to me that a common thread amongst those who are judges is that they have served in some way in the community or some other way. They've gone outside themselves. They've gone outside the hallway of their law firm. They have done that indicating an interest in some larger service. They didn't just wake up one day and decide, “I know how to serve on the bench.” That's in their DNA of serving in different ways. 

You added another point to that, which is if you're preparing and training to be ready for a role in some way, that actually is good training for all of the various roles, particularly what state Supreme Courts and chief justices on state Supreme Courts have in terms of administering the courts in the state, and thinking about those issues. Also, as a judge, you're thinking more broadly. That's interesting. I hadn't thought about it that way. 

All courts make policy and I don't mean in the cases. We do mean in rules and the code of professional conduct. There are many different areas of our system. The courts are charged in our state with the administration of justice. It is an incredibly heavy burden. The court can't just sit here by itself and do that. The court is engaged in policy discussions all the time. One of the lessons learned from the pandemic for me is the crisis when we shut the door of every courthouse in the state of Illinois on March 17, 2020. How terrifying was that? 

We talk about Access to Justice. We literally closed the doors. How do you do that? How can you deny people the opportunity for justice? The way we moved forward, usually you think about courts as top-down to make a decision, but it didn't work. We couldn't do that. I wouldn't know how to do that on my own. Very quickly, we had Zooms with lots of different pictures of stakeholders, and people who work in the court system in one way or another. We have people from the Access to Justice community trying to be the voice for litigants so that we could figure out how to do this, and how to move forward in all of this. 

It was an incredible challenge but I think we learned a lot of processes that we're going to continue to do. We're going to continue to vet more voices. People are coming together to make policies about the administration of justice moving forward. I think it's a healthy piece. That's important both in good outcomes, but I also think it's important pursuing the idea that the public has lost trust in our courts to address that and to meet that concern. 

Let me step back and talk about how deeply troubling this trend is. Studies have been done for twenty years on the issue of why people obey laws. Why do people obey court orders? The simple answer that comes back every time is that people are willing to accept what happens to them, win or lose, if they believe they've been treated fairly. 

What happens when we start to lose that sense of fairness? When the people no longer trust the courts to treat them fairly, it is nothing less than a challenge to the rule of law. As people who care about the rule of law and who care about our systems, what do we do? How do we engage this problem? How do we promote the public's trust and confidence? We need to think more and more about ways to do that. 

One of them is to become more transparent and to have the courts be places where people's voices could be heard about policy, and not just in cases. This court system affects the lives of everyone in our society. We're here to resolve disputes peaceably. If people walk away from our courts, what's happening? Disputes are still there. The question is how they are going to be resolved in our communities. 

We all have an obligation to think creatively as to how to promote trust and confidence in our court system. We've learned some important lessons that we'll use moving forward about how to open up discussions about the policy in our courts. Should we continue with remote hearings? That's a big issue. Should we have a court open on weekends? These issues seem not as weighty perhaps as the cases that we've been discussing, but they affect people's lives and their feeling about whether or not their needs are being met by our court system. 

When that breaks down, as I say, it's something that affects every one of us, especially those of us who are devoted to the legal profession. That's a long answer to say, there are lots of policy opportunities for people to engage in. Now, I think most courts around the country are anxious to hear as many voices as possible when those hard issues come along. 

There are so many points in what you discussed. You heard the discussion about, “What are the courts going to take away from the COVID experience?” That discussion usually ends with, “Are we going to have remote hearings or not?” You're talking about the decision-making process and saying, “Maybe we can have more input, collaboration, and transparency in how we do things,” and that will have an impact on the court system that's both helpful in terms of coming up with maybe new ideas about how we might do things. 

Also, everyone has a stake. They're a stakeholder and they have a sense of confidence in the system itself and how it's operating. The second point that is important is why people obey orders, as you said. It is because they have trust and confidence in the system. When you said that, I was like, "Yes, that's the problem.” I've worked on some international human rights cases. The problem there is that the domestic system is either not respected or has fallen down. Now, we have to come in. 

The question is, how is this going to be implemented? It's great that we've had an international court ruling, but what is going to happen as a result of that? You're bringing it back to a system that broke down, was perceived to have broken down, is declared to have been broken down by the international court, and now you're like, "Now, implement this." "That's going to be a problem. We're going to need to monitor that." When you said that, I was thinking, "Yeah, that's the problem." That's why you have to go outside the domestic system that doesn't have that confidence or the rule of law isn't operating. 

Building and promoting trust and confidence comes in lots of different ways. We talked about transparency. Courts traditionally are not transparent. Traditionally too, they're slow-moving and tradition-bound. We've been doing this since England, so therefore we will continue to do that kind of idea. Top-down, the Chief Justice knows everything kind of idea. The lesson that I will take moving forward after what we've been through in the pandemic is, who knew? We can change. We can adapt. 

We can be nimble. That's a business term. Is that a word you think of when you think about the courts and the legal profession? Absolutely not, but we learned we can be and we can do that because we can see the needs of the people that we're here to serve. If our systems are not working, then we have to fix the systems. We have to find ways to do nothing short and deliver justice to where people are and where they are emotionally and physically. 

This time of thinking about lessons learned is valuable. I try to engage in these conversations as much as I can with people about what are the best things that have happened to the court system and where have we failed. There is that sense of, “What is the court system if it's not columns and high ceilings and all of that kind of thing?” One of the expressions that people have used is that we've learned that court is not a place, it's a service. That's an important idea to think about. 

What are we doing here? We're not just in the trappings of justice. We're trying to provide justice. It’s a different way of looking at these kinds of things, but the concern is that or at least it is. I think one of the great things about Zoom and that kind of thing is that we're all the same size and the same boxes on the screen. 

When I'm in these meetings with the sheriffs who are concerned about how they're going to do eviction cases during the pandemic, we're all the same size. We're all trying to work together to get to a result but there is the concern about what have we lost if this is all there is. You wonder about what people and litigants experience afterwards. I think we need to do a lot more study on that for sure.  

I'm concerned about young lawyers. Historically, when you're a young lawyer and the top lawyer in your firm is doing a big oral argument, you can go sit and watch and learn. That's not happening day in and day out now with remote hearings. How are young lawyers learning and are they developing? Mentors take time to develop relationships. Can we do that in this new world? I'm very hopeful. There's a lot of energy and a lot of thoughtfulness going on that this incredible experiment that we have of providing justice is in a healthy place because people want it to be. People want to work together to promote people's trust. 

Young lawyers cannot just sit and watch top lawyers do oral arguments day in and day out these days because of remote hearings. Mentorships take time to develop.

I wonder whether that experience and the collaboration and input have impacted how you think you'll move forward as Chief Justice in terms of getting more of that collaboration and input from a number of different folks on issues you might not have thought about before. 

It's been very edifying, but I've certainly learned a lot personally through all of these experiences. I know that as the State of Illinois moves forward, we will continue to try to hear as many voices as possible. Specifically, I am concerned about how we have a pathway for court users to communicate with the courts. Certainly, I have heard the voices of their lawyers and certainly from the legal aid communities and the Access to Justice communities. We don't have a good way to hear the court use its voice. That's something I'm interested in trying to figure about that out. 

We know in Illinois at least, in civil cases, about 70% of the cases that are filed, at least one party is self-represented. The system that we picture or the adversarial system was lawyers on either side. That's not the landscape of where we are now in the state court system. We've been talking about this idea of Access to Justice for some time, but it's very real. Most of those people are defendants. They're in eviction courts, mortgage foreclosure courts or consumer debt courts. They can't afford to pay their credit card bill. They can't afford a lawyer. 

We also are seeing pre-pandemic a drop in filings by plaintiffs of about 40%. Now, my concern is this. People are still having legal issues and meritorious claims, but they're not coming to the court system. They're choosing not to come. Some of that is because they can't afford a lawyer. Even if the defendants can't afford a lawyer, the plaintiffs can't afford one, what happens then? I also think a lot about the fact that where we are now, the court system is no longer the only place to resolve disputes. We now have competition. It could be an online resolution. It could be all mediation, arbitration, or other kinds of things. 

We know that people are willing to give up what seemed like core parts of our system. They don't care about discovery. They don't care about precedent controlling. They don't care about appeals. They want the results in their cases so they're walking away from the courts. Those who can't afford it and then those who are making a choice, and then there are those who don't trust the court system. How do we engage all of that? 

The court system is no longer the only place to resolve disputes because of online resolutions. This pushes people away from courts, especially those who cannot afford them.

One of the things I think a lot about is thinking in business terms. If we're in a crowded market or dispute resolution, what is our added value? What do we bring that's different from online dispute resolution? What is it that we should advertise to people to say, "Come to the court system? We can help you resolve your disputes." 

I want to think more about that. I want to hear more and talk about it, but I think it's a justice value. We're here to do these big powerful ideas and we're committed to justice. We're committed to integrity. We're committed to high standards of ethics. We're committed to impartiality. This is what we do that is not the same as market-based dispute resolution. 

This is how we should be communicating to people that they can trust us because of the values that we embrace. I'm not saying it's easy to get that message out, but I do believe that we have to understand that our core system, not just in the pandemic, is changing dramatically with the rise of self-represented litigants and the decrease in plaintiffs. The people are telling us something and we have to respond. 

It's interesting what you were saying about the market differentiator or value proposition of the traditional court system. You're definitely on to something there. I saw these various specialized courts that are in Doha. They have this think-tank and the government is involved in it, but it's still these private courts focused on different things. 

They are working on a space court and different things like that, and new areas like blockchain disputes where they say, “Come, bring your disputes here,” but where are the judges coming from that they're inviting to serve on these courts? They are from the UK, Australia, Wales, and areas where those justice systems are respected. There's something about it that lends legitimacy to this brand-new court system. I think that has been already been recognized by those who are trying some specialized courts, but there's value in that. 

Are we just a publicly funded dispute resolution setter? I don't think so. 

No. There's a rich tradition. 

We're doing something more. Another piece is that we're the third branch of government. The idea of private dispute resolution is people believe it has its place. People are willing to give up all of these ideas that we think are so important such as precedent, appeal, and all that. I believe this. The word you’re using that struck me was legitimacy. We have to show that there is legitimacy here. We're not just a for-profit program here. We're the third branch of government with people who are driven to commit themselves to a high degree of ethical conduct. Those are the kind of values I've always worked on in my career. Now, that's the challenge that we have to face in the American legal system. 

That's so interesting and I think it, in so many ways, was highlighted by COVID and the circumstances that happened in terms of access and things like that. Never let a good crisis go to waste. You can use that to propel things forward and maybe move a little faster than we're used to seeing the courts do in terms of changes as necessary, but still keeping the core of what drew me to the law. What I loved about working for the judges I worked for was that sense of something much greater than the individual case even or certainly, our role in it that we were also serving. 

Thank you so much for having this discussion. It's been great. I've enjoyed it and it's been thought-provoking hearing how you think about the courts and the system of justice that we have in our great country. Before I close, usually I ask a few little lightning-round questions. The first question is, which talent would you like to have but don't? 

I wish I were better at foreign languages to be able to communicate. My French is atrocious. I studied it in high school and college. I start to speak and I'm worried about the verb forms and how the endings are on the words. Both are a way to communicate, but thinking about language makes you a better writer. Since that's what I do for a living, I wish I had more tools to do that writing better and I think having a foreign language would be helpful. 

Speaking of the writing part, who are some of your favorite writers? It could be non-legal writers as well, just fiction writers. 

They probably are non-legal writers. As a legal writer, would it surprise you to know that my favorite writer is James Joyce, but I love John le Carré, who is underrated that he's just a spy writer. His writing is amazing and the way he tells stories. My current favorite writer is Colson Whitehead. The Underground Railroad is unbelievable. Harlem Shuffle was so much fun. I can't wait for the movie. I heard that they are going to make a movie. It was so cinematic. He's a great storyteller. Those are some very different writers and some of the ones that I admire. 

I took some fiction writing classes, short story writing, and creative nonfiction writing. Many years ago, I had this early midlife crisis of, “Should I have been a writer instead of a lawyer.” I saw so many parallels between what we do, especially at the appellate level. Good storytelling and good writing, there's a lot to learn from that. 

While I discerned that I had made the right decision early on and did not need to become a fiction writer, there was a lot to learn from that. I was curious about who people are reading and who their favorite writers are. I think that we can internalize that, and then use some of those principles in legal writing as well. 

I remember having discussions with some of the instructors. I said, “A lot of these techniques that you're using in short stories or whatnot, we do that too. We do storytelling in legal writing. They were very skeptical of that. I brought some briefs for them to look at. I said, “Look at what we're doing.” They were like, “You're right. You do that. We haven't thought of the law in that way.” At the appellate level, there's the opportunity to do that. It's one of my favorite things. 

It works the other way. If you pick up a novel now, you're going to read it in a different way because you're an appellate writer. Another great writer right now is Amor Towles. Do you know that he wrote A Gentleman in Moscow? 

Yes. I love that book. 

Talk about storytelling and his most recent one, Lincoln Highway. Those are books that you don't want to put down, but we read them differently because we write all the time. We're aware of the tricks that they're using. 

I enjoy the story and I enjoy all that, but there are moments where you go, “That was well done,” and you stop and enjoy the wordsmithing and the phrasing and things like that, the two levels of doing the reading. It's neat. If you had a dinner party, who would you invite as a guest? 

An easy answer for me is Barack Obama. I would want to know about what he's reading. Do you ever see that he posts his favorite books of the year every year? 

Yes. 

I love to read it. I read a lot of fiction and I love that list. I wait for it and then I was like, “I read the same book too. I like that one too.” He is good at music and he is great at a lot of things, and he's also charming and funny. That's an easy answer. I had the incredible experience of spending some time with Justice Sonia Sotomayor. A friend of my family was clerking for her. I had an opportunity to meet her in her chambers. 

I thought I would shake her hand and take a picture or whatever and walk up. I couldn't leave. I was overwhelmed. I kept saying, "Justice, you have work to do. I'll go." She had such a generous spirit. She wanted to know everything about the Illinois courts and how we work and how we function, and interested in other people. She'd be a lot of fun to have dinner with too. 

That sounds great. That would be a neat group together. It's nice when people are that way, and that they're very gracious and generous. They've set time for you and then they're very gracious about that time and ask about you too, just like you. The last question is, what is your motto if you have one? 

I am absolutely surprised every morning by how fortunate I am. I've been married for 51 years. I have two children who are wise and independent and showed incredibly great judgment in choosing partners. I have seven grandchildren. I chose to be a lawyer and I'm Chief Justice of the Illinois Supreme Court. Every morning I think back to an ancient motto, “This is the day the Lord is made. Let us rejoice and be glad.” 

That sounds like there's a lot to rejoice about in all of that. That's amazing. My mother has a saying which is to make this the best day ever. It's that same kind of idea of each day is fresh to be grateful for what you have, but also very forward thinking and positive about what can you do with this day to contribute. Thank you so much for this discussion and for joining the show and participating in this whole project. I very much appreciate it. 

Someday, I hope we can meet in person. It would be delightful. I enjoyed this conversation and hopefully, we will continue to have this conversation. 

Thank you so much, Chief Justice. 

It's been fun. 

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