Category: News Feeds

2020 has been the story of a world in flux. Though some in-house counsel would argue that their world has always been one in flux. Which is not too far from the truth.

COVID-19, however, meant that very few (if any) spheres have gone unaffected; the legal profession is no exception. Thankfully, there are still a few fundamental concepts that did not test positive for anything but longevity.

The three keys:

• Integration
• Optimization
• Maximization

Integration

As in-house counsel, your primary form of integration is getting law and business to gel. It doesn’t work the same way as a traditional law firm, with billable hours. In fact, it’s not really client-facing at all. The purpose of an in-house counsel is to use their legal expertise for the betterment of the company.

Usually, lawyers are too downstream to have much of an impact on contract negotiations. That dynamic creates several problems, however, including that the very people who are most aware of possible ramifications and remedies of the contract are excluded from the drafting process. So, it is the responsibility of the in-house counsel to take initiative and make themselves more involved. They should integrate with other departments by giving input on risk profiles and emphasizing the necessary role they play in every type of agreement and at every level of complexity. Their so-called tribal knowledge could be quintessential to problem-solving, and they will be useful in documenting the correct and optimal processes of governance.

To find out more about negotiation, tribal knowledge, and the importance of governance, check out my interview with Jeanette Nyden.

Optimization

Optimization is about making things as efficient as possible. In order to do that, counsel must be prepared to make changes and to prepare the company to adopt them more broadly. It is your chance to innovate and introduce new processes.

We have long passed the BC years. We’re now in AD, the era of Automating and Delegating. Automating leverages technology (which holds obvious benefits) and delegating enables you to intentionally build a proper legal department. In addition to lawyers, you should be hiring the likes of project managers and data analysts –- doing so will ensure your team has a diverse set of skills and will optimize the individual areas within the legal department. Data, in particular, plays a key role because it enables you to have feedback loops. You cannot optimize what you do not measure, and data collection and analysis will enable you to evaluate KPIs and quantify the ROI of the alterations.

To find out about the ideal (I.D.E.A.L.) legal department, have a listen to this conversation I had with Laurie Ehrlich.

Maximization

In my interview with Ken Ito (see below), we had a fascinating conversation about his journey to becoming general counsel. To sum it up: resilience and upskilling.

Ken shared how he battled to find legal work following the 2008 crash but managed to do some work for family friends for a few years. Throughout that time, he kept scouting for legal jobs and later got a position as an auto insurance defense attorney — even though it wasn’t what he wanted to be. We then talked about the importance of acquiring a broad skill set and how varying your work and interests can help you to develop nuanced skills, many of which will help you to be a better in-house counsel because they deal with virtually every kind of situation. It is imperative that you maximize both time and opportunity. If it can add to your CV, applicable knowledge base, or skills, then it is definitely worth the persistence required to achieve it.

Ken is now a GC and wouldn’t trade his unique journey for anything.

The keys to unlocking potential, progress, and performance are found in integrating, optimizing, and maximizing. Strive for synergistic relationships with other people and departments as you leverage any advantage — technological and otherwise — to better you, your department, and your processes. It’ll help you survive any flux –- and we might need it for 2021.

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

A lot of this COVID-19 quarantining has bordered on the surreal. Daily life has changed so much since March that 2020 seems to have been sucked into a black hole.

Nonetheless, we all soldier on. Some aspects of the quarantine have made me a better lawyer.  Others, not so much.

First, the good stuff.

1) I can take as many CLE classes as I want. Virtual CLEs are amazing. You can wear whatever you want, be wherever you want, and catch up on everything you’ve missed because never before did you have enough time. I’m not taking classes on broadscope issues like “How to Try a Case,” but on more obscure subjects like, “why what that prosecutor implied (not even said) during summation is objectionable.” It’s great to have time to delve further.

2) I can speak to my clients as often as I’d like (albeit at half-hour intervals) without leaving my house. Who would have thought that due to the magic of the internet, I’d be able to see my clients from my own laptop without having to schlepp to jail or having them schlepped to court. No more getting stuck in cold prison waiting rooms for hours, now I just make an appointment, press a button, and the inmate’s there.

3) Because I can see my clients more easily, and there’s nothing new to report about their cases, my role has grown from that of a litigator to psychologist, mother figure, and general hand-holder. It’s a skill worth developing in any line of lawyering work, but especially for lawyers who work with clients stuck in jail, needing to know that someone from the outside is paying attention and cares.

4) I have reams of time to prepare my cases for trial. No longer am I wasting four hours a day in court waiting for my cases to be called or commuting to work. I can pore over the most complex discovery, take copious notes, and mull over strategy. Instead of feeling like the train’s about to leave the station and I’ve got to run my fastest to catch it, I’m actually on the train and sitting down.

5) I can intersperse my workday — looking at gruesome evidence, reading grand jury minutes, and listening to taped phone calls among defendants, etc. — with taking a walk, attending a Zoom yoga class, or just staring out at the window at trees instead of a high-rise building blocking my view.

6) I’m home before dark (because I’m home all day).

Now, the bad stuff.

1) My clients know they can reach me any time of day or night, and they do.

2) Weekends are meaningless. There’s no longer a differentiation between Monday to Friday and Monday to Sunday. Nine to five is out the window.  Work and home life have morphed into one.

3) I get lonely.  I miss the camaraderie of colleagues. True we sat in court for hours waiting for our cases to be called, but those hours were often entertaining. We caught up on gossip, watched lawyers lawyer, and sometimes even discussed the law.

4) We’re all in limbo. No matter how caught up with a case you are, knowing there’s no trial looming in the future tends to make all those details of discovery turn fuzzy. My mind’s always sharpest when I’m prepping for trial that I know is starting Monday. There’s no “Monday” right now.

5) How many times can I tell my clients — just be patient, we’ll eventually get to trial.  A Judge told me last week that in Manhattan alone, there are at least 1,000 cases ready to be tried, with nowhere to go.

Picture that. When trials resume, more than 1,000 cases will already be at the starting gate. The average trial takes approximately eight days (many cases are longer). That’s at best. That means if there were three trials a month per judge (in Manhattan there are approximately 25 full-time trial judges), the system might be able to get through approximately 75 cases per month (once a vaccine is widely disseminated) — so we’re talking about a full 13 months  just to get through the backlog, forget about the new cases that become trial ready in the interim.

That’s a lot of time for clients to sit in jail hoping they don’t get COVID-19 and awaiting their day in court.

And you thought you had it bad.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Last week a divided panel of the U.S. Court of Appeals for the Eleventh Circuit held that municipal bans on so-called conversion therapy violated the First Amendment’s guarantee of free speech. Specifically, the panel recognized these bans as a form of content- or viewpoint-based restriction. Although many, like myself, no doubt view a therapy designed to “convert” LGBT citizens as bigoted, and therefore, highly controversial, the Eleventh Circuit correctly notes that “the First Amendment has no carveout for controversial speech.” In other words, even the most hateful and revolting viewpoint is nevertheless covered under the First Amendment’s guarantee. With this decision, however, the Eleventh Circuit has created a circuit split. Although the case is therefore likely to go before the Supreme Court to settle the split, as others have noticed, the tangled nature of the issue makes the ultimate outcome far from certain.

It would be too easy to say that a religious conservative supermajority Supreme Court will, of course, declare that conversion therapy — which is derived from a far-right religious view of homosexuality — has First Amendment protection. The problem for conservatives is that using this reasoning puts into question the conservative policy of government compelling doctors to make religious antichoice speech and desired conduct in cases of abortion. For those who may not be aware, religious conservative legislatures have passed laws compelling doctors to make women undergo unnecessary, emotionally disturbing, and downright humiliating procedures in cases of abortion. It is difficult to square how the government compelling doctors to declare anti-abortion viewpoints does not disturb First Amendment guarantees, yet so-called bans on “conversion therapy” amount to government impermissibly compelling a viewpoint.

Blatant contradiction and government favoritism, however, are parts of modern Supreme Court First Amendment doctrine. Navigating this minefield is either going to be increasingly difficult for the Supreme Court to justify, or with a new super-conservative majority the court will simply abandon all pretenses of applying the First Amendment objectively. The only certainty is these types of cases involving First Amendment claims against government-mandated medical practices will keep coming up in courts. For example, I have no doubt that when COVID-19 vaccines become available many businesses as well as local and state governments will require mandatory vaccination in order to return to work or to places like public school. I also have no doubt that many religious citizens will bring claims arguing that mandatory vaccination of any form encroaches on First Amendment guarantees. Of course, the Supreme Court has long recognized the authority of state police power to impose mandatory vaccination necessary to protect the health of residents. The only question is whether a new super-conservative majority will continue to carve out exclusive exemption for or favoritism of religious conservative viewpoints.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

A lot will be written about the absurd futility of the Trump “elite strike team” legal strategy, but as it continues to metaphorically run face-first into a wood chipper, one idea keeps creeping around conservative social media that deserves to be highlighted.

He is not.

Nor are Rudy and Jenna. Sidney Powell is the only one who might be playing chess, but not the kind that ends with Trump in the White House, so much as the kind that ends with her own show on OAN. But in any event, there is no such thing as hiding the “big” or “good” evidence until the appeal.

The trial court makes all the evidentiary findings. If new stuff comes out on appeal, the only thing that’s going to happen is… it goes back to Judge Brann. And that’s before taking into account that the only thing they seem to be appealing is the decision not to allow them to amend the complaint as opposed to, you know, the lack of standing argument.

How can we explain this to people who aren’t lawyers? It’s like replay reviews in the NFL. You know how the replay isn’t really relitigating the call, but only looking for clear and irrefutable video proof? The NFL made that rule because its officials are lawyer types and they make the rules the same way the legal system works. The “evidence” of the play is already there — there are no do-overs on video review — the “appellate” call is just to look at what happened before and say whether it was clearly wrong. The coaches don’t get to tell the ref what they thought they saw or explain why they didn’t agree with the original call. Everything that goes into that decision has to be under the replay hood.

So there is not some magical gambit that allows Rudy to wait until the Third Circuit (or SCOTUS) to unveil his definitive proof that Hugo Chavez is alive and running voting machines from an underground bunker somewhere. At the very best, this is just trying to force Judge Brann to let them write a new complaint… that still would lack standing. To keep the analogy going, Rudy and Friends are arguing that the receiver really did have one foot inbounds when the rule clearly states that he needs both feet.

Or, perhaps more accurately, that the receiver had one foot inbounds when the play was already blown dead for a false start. Because without fixing the standing problem, it doesn’t matter how many Dominion voting machines there were in Philadelphia (spoiler alert: NONE) — this is simply a non-starter.

So the next time you hear from someone in your life about the real evidence that Trump’s people are holding back for the big appellate showdown, go ahead and tell them that it isn’t really a thing.

And please reset the game clock to 34 seconds… it remains 4th down.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Bonus season is kinda, sorta upon us. I mean Baker McKenzie made a move, but it didn’t account for the COVID appreciation bonuses that swept through Biglaw this fall, so it was pretty anti-climactic.

Anyway, firms — and their associates — are in a holding pattern, with lots of questions. Like how much will year-end bonuses be, and if they will account for the COVID bonuses that some firms have already paid out? Because there’s a weird split in Biglaw bonuses this year (an industry noted for adherence to a market standard), with some firms already paying appreciation bonuses as a special thank you from the firm for their hard work during the pandemic in addition to year-end bonuses that are promised to be at least as big as last year’s pool. While others have been silent, and left their associates wondering.

Clifford Chance has answered at least some of those questions for associates. While there is no formal bonus announcement yet, at an Associates’ Meeting call last week, U.S.-based associates were told there will be COVID appreciation bonuses in addition to the standard year-end ones that will be paid in mid-January. While the exact dollar amounts were not hashed out, given that another Magic Circle firm, Freshfields, previously announced (and paid out) appreciation bonuses ranging between $7,500 and $40,000, depending on class year, there’s a very good chance they’ll be on that scale.

With so many elite Biglaw firms waiting until the end of the year to make bonus decisions, keeping track of what peer firms are doing is a little trickier this year. But fear not, Above the Law will continue to monitor exactly what’s going on across the industry.

As always, we depend on you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

— an adorable segment from a CBS local affiliate, WVLT 8 in Knoxville, Tennessee, on the Montpelier Della-Rodolfa Law Firm’s “junior associate,” Wally the Wallaby. “When he first got here, I was like, ‘Oh my god, what are we going to do with this thing wandering around our office?’ But now, I don’t know what we would do without him wandering around our office,” says partner Dale Montpelier. Wally gets four bottles a day, and clients like to rub his belly when they come to the office.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Why Most Law Firms Suck at Intake 
and How Yours Can Do Better

How many law firms know their lead conversion rates?  How about the number of leads they lost in the previous month?

The answer is “close to none” — an inexcusable state of affairs, particularly considering their typical investment in marketing and lead generation.

This webinar will focus on how law firms, particularly small firms and plaintiffs firms, are dropping the ball on client intake, and how they can convert their marketing budgets into conversions.

Join Tom Ball, SVP of Business Development of Alert Communications and Bob Ambrogi, lawyer and legal journalist as they provide a soup-to-nuts overview of the client intake process and its key inflection points.

By filling out the form you are opting in to receive communication from Above the Law and its partners.

Pour one out for the Elite Strike Force Team of Extraordinary Gentlemen. Since Rudy Giuliani’s leaky press conference on Thursday, attorney Sidney Powell has been demoted to freelance conspiracy flogger, reduced to crowdsourcing her campaign for justice using the hashtag “KrakenOnSteroids.”

A lot has happened with the Trump campaign’s attempt to overturn the results of the presidential election in Pennsylvania in the past 48 hours — and all of it soul-crushingly stupid.

On Saturday, U.S. District Judge Matthew Brann issued a withering smackdown of the Trump campaign’s legal stylings in an order denying the motion to amend their complaint and dismissing the case with prejudice due to lack of standing and failure to state a legally cognizable cause of action.

“This claim, like Frankenstein’s Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent,” he wrote, adding a few paragraphs later, “That Plaintiffs are trying to mix-and-match claims to bypass contrary precedent is not lost on the Court. The Court will thus analyze Plaintiffs’ claims as if they had been raised properly and asserted as one whole for purposes of standing and the merits.”

Which is hardly a ringing endorsement of the quality of lawyering by Team Trump.

The court cited Third Circuit precedent for the plaintiffs’ lack of standing based on a theory of vote dilution, demolished the campaign’s claims to competitive or associational standing, particularly based on the Marks v. Stinson case Guiliani keeps waving around as if it’s the Magna Carta, described the remedy sought as unconstitutional, rejected the Equal Protection claims because the Trump and Biden campaigns had equal access to the canvass, and characterized the requested delay to amend the complaint as something close to dilatory.

Naturally, the Trump campaign reacted jubilantly, congratulating themselves for graduating to the Third Circuit in record time.

“Today’s decision turns out to help us in our strategy to get expeditiously to the U.S. Supreme Court,” they announced, characterizing the decision by Judge Brann, a longtime Republican and Federalist Society alum as “just an extension of the Big Tech, Big Media, Corrupt Democrat censorship of damning facts the American public needs to know.”

Then Trump campaign lawyer Jenna Ellis made fun of Frank Luntz’s penis on Twitter.

So gravitas! Very officer of the court!

Indeed, the Trump Brain Trust did file a motion for expedited review on Sunday evening. In fact, they filed two, after several hours of getting mercilessly hammered on Twitter by every competent appellate lawyer for failing to appeal the district court’s substantive holding and basing the appeal “solely on the basis of undue delay after dismissing Appellants’ Amended Complaint with prejudice.”

In a midnight mulligan, the Trump campaign clarified that it may still appeal those issues, just as soon as it finishes wowing the trial judge with its Second Amended Complaint.

Further, Plaintiffs believe that the Second Amended Complaint cures any deficiencies noted by the District Court regarding, inter alia, standing, equal protection, and remedy because its allegations are very different than those in the Amended Complaint. Plaintiffs have specifically pled claims based on this Court’s decision in Marks v. Stinson. However, to be clear, Plaintiffs do not intend to waive any claim that any part of the District Court’s decision may have been wrongly decided, including, inter alia, the District Court’s denial of Appellants’ claim for standing and Equal Protection, and can provide supplemental briefing on any such issues if the Court requests.

Marks v. Stinson, DRINK!

There’s also some bizarro language about there being no “case or controversy” over the district court’s dismissal order.

According to the Secret Rudy Decoder Ring we found in a box of Froot Loops, this means that the entire dismissal is a nullity because the judge failed to take into account their magical Second Amended Complaint that would explain how Trump really won Pennsylvania’s election despite losing by 80,000 votes. Never mind that the Second Amended Complaint does not exist for the purpose of the federal docket, since Judge Brann refused to allow further amendments. It exists in Rudy’s mind, and thus the court must take due notice of its brilliance.

And speaking of things that exist only in someone’s fevered imagination, check out Sidney Powell’s appearance on Newsmax this weekend wherein she accused Georgia’s Republican governor of getting paid to steal the election from Donald Trump, perhaps with the connivance of the CIA.

Alrighty then. 

Shortly after this bravura performance, the Trump campaign released the Kraken … from her association with the Trump campaign.

“Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity,” Giuliani and Ellis wrote of their erstwhile sidekick.

In her own statement, Powell agreed that she “never signed a retainer agreement or sent the President or the campaign a bill for my expenses or fees,” but vowed to fight on.

“We are proceeding to prepare our lawsuit and plan to file it this week. It will be epic,” she promised, without specifying exactly how she’d get standing to sue the “communists from without and within” or the “foreign actors in Hong Kong, Iran, Venezuela, or Serbia, for example, who have neither regard for human life nor the people who are the engine of this exceptional country.”

“You may assist this effort by making a non tax-deductible contribution to www.DefendingTheRepublic.org. #KrakenOnSteroids” she concluded.

And even as we type, the Third Circuit clerk has duly accepted the appellants’ proposed briefing schedule, so this afternoon will bring us yet another legal filing by the Trump campaign. Very kind of the president to sponsor the #AppellateTwitter virtual happy hour. Again.

The brief is due at 4, so have your cocktails ready.

[All case documents courtesy of Democracy Docket]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

The novel coronavirus continues its rapid spread across the country, with cases increasing exponentially by the day. Hospitals are once more on the brink of being overrun, and indoor gatherings of large groups of people have been discouraged by the CDC. So much for Biglaw’s plans to return to the office.

Some firms had already opened their doors and welcomed employees back to their desks in small numbers, but the Biglaw powers that be are now asking lawyers and staff to come to grips with the most difficult of questions: Do you really need to be in the office to get work done? Is it absolutely necessary?

Haynes & Boone, for example, was eager to get people back into the office, but they’re rethinking those plans. The firm’s executive committee is now telling employees to avoid the office at all costs, unless absolutely necessary, from November 25 through December 9, at the very earliest. “We’re still very focused on what return to office is going to be like,” managing partner Tim Powers said in an interview with the American Lawyer. “But right now, we’re trying to be careful, do the right thing, and keep people physically and mentally well.”

At other firms like Dentons, where office work was made optional for the remainder of 2020, firm leaders are deciding whether they’ll extend their work-from-home plans into 2021 given how cases are surging and expected to get worse during the holiday season. Think twice before you head to the office at this firm.

“We’re still following, at the top level, the same approach that we had, which is incremental and deliberate,” U.S. chief operating officer Mark Flanagan said. “All of our offices are available for access.” …

With the Thanksgiving holiday approaching, Dentons is asking workers to consider if their presence in the office is really essential. ”It’s an additional protective measure with regard to the coming two weeks,” Flanagan said.

If any Dentons attorneys or staff do elect to hit the road or get on an airplane over the holiday, they will be asked to stay out of the office for 14 days upon their return, per the firm’s travel policy.

Firms with offices located in the heartland, like Ballard Spahr and Faegre Drinker, are still letting employees work remotely. “While our office remains open, we will largely continue to rely on our robust technology and remote-work capabilities in the coming weeks until the greatest risks from COVID-19 have subsided,” said Ballard Spahr’s Minneapolis managing partner Karla Vehrs. Although some of the firm’s locations in the Midwest reopened (with low in-person attendance), Faegre Drinker’s chief operating officer Jane Koehl echoed Vehrs’s thoughts, saying, “Earlier this year, we committed to all colleagues that no one is required to return to our offices in 2020. That commitment to our people has not changed.”

Help us help you. What are your firm’s plans for the second wave of COVID-19? Let us know what your firm is doing to take care of all of its employees during this unprecedented time. Please text us (646-820-8477) or email us if your firm expects you to go into the office or if you’ll be able to continue to work from home. Thanks.

As COVID Cases Rise, Law Firms Push Lawyers and Staff to Stay Home [American Lawyer]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Here’s a thought experiment.

The Democrats somehow manage to win both of the senatorial races in Georgia, dividing the Senate 50-50. Vice President Kamala Harris breaks the ties, giving Democrats the majority.

Then, suppose something happens to President Joe Biden. (Don’t get me wrong here. I wish him a long and happy life. But he is 78 years old, and the presidency is stressful. It’s not inconceivable that Biden could become unable to hold office at some point during the next four years.)

Under the 25th Amendment to the Constitution, Vice President Harris succeeds to the presidency, and the vice presidency becomes vacant. Here’s the succession process:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

So Harris nominates someone.

There’s a Democratic majority in the House of Representatives, so the House votes to confirm the new vice president.

But the Senate is now deadlocked 50-50, and there’s no vice president in place to break the tie.

I hate to be a pessimist realist, but Mitch McConnell would be nuts to confirm anyone as vice president. With the office empty, McConnell would have the ability to deadlock every vote in the Senate at 50-50, and nothing could pass without Republican consent. The instant McConnell allowed a vice president to be confirmed, the Democratic vice president could begin breaking ties in the Democrats’ favor.

Three thoughts:

First, I don’t think the 25th Amendment envisioned this situation. Someone with the ability to speak wisdom to power should identify this situation and cause it to be fixed, either by constitutional amendment (which would become effective sometime in the future, so no one would think it’s an effort to get Harris’ nominee confirmed) or by statute.

Second, my little thought experiment leaves Nancy Pelosi next in line for the presidency if something were to happen to Harris. Harris appears to be a strong and vibrant woman, so there’s no reason to think this eventuality would come to pass, but I bet the very idea of President Pelosi gives Mitch McConnell the shivers. Perhaps he’d agree to some centrist vice president simply to avoid the chance of Pelosi succeeding to the presidency. Or perhaps McConnell’s reaction depends on when Biden became unable to perform the duties of his job: If Biden were incapacitated in February 2021, leaving Harris in office for four years, McConnell might worry. If Biden were incapacitated late in 2024, McConnell might let it ride.

Finally, has it really come to this? My little thought experiment reveals just how nervous I am about partisanship in America and the parties’ apparent unwillingness to do anything for the good of the country.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com