The Significance
Litigators are also bracing for how the presidential election could impact juror behavior and the type of tactics they might see in the courtroom.
“I suppose that worried, divisive, fearful jurors will be a different group than you were talking to pre-pandemic. I’ve been mostly focused on the different legal issues that we’ll see a change because of the divisive political climate,” said Denise Keyser, a labor and employment lawyer at Ballard Spahr.
Keyser said lawyers might have to consider how they get the attention of jurors who might be more distracted and unhappy in the political climate. “Maybe you have more plaintiffs’ lawyers arguing conspiracy theories? Maybe you have more jurors who are more willing to accept these kinds of conspiracy theories?” she said.
On the transactional side, the uncertain fate of the executive branch has sewn unease into dealmaking, but it might be too soon to predict how it will affect activity.
Sam Snider, a partner in the transactions practice at McDermott Will & Emery, said in an email, “From a strategic M&A perspective, I think it was still a little early in the election cycle for companies to act based on any anticipated outcome. As with PE sponsors, I think you will see continued caution from dealmakers in industries heavily impacted by trade policy and inflation, but I expect that players in industries with ongoing megatrends like the energy transition will continue with deals intended to meet longer-term needs.”
Although some regulatory attorneys expect that another term for former President Donald Trump would tone down antitrust enforcement, others predict continued aggression from agencies, particularly in certain sectors.
“No respite for Big Tech—Both Trump and Harris would continue to target the sector,” said James C. Cooper, who specializes in competition law as an Antonin Scalia Law School professor at George Mason University. “I wouldn’t see Trump dropping any of the cases against Facebook, Google or Amazon. Conservatives have it in for Big Tech because they see these platforms as silencing conservative voices.”
The Information
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The Forecast
Even before one of the presidential candidates emerges victorious, election attorneys foresee potential legal challenges.
As the general counsel of the Georgia Republican Party, Alex Kaufman of Chalmers, Adams, Backer & Kaufman said party officials are reviewing the legality of Biden’s decision to drop out of the race. “Given the timing, it appears at first glance and upon initial legal research that the Democrats will be able to have their presidential nominee’s name—whomever that may be—on Georgia’s General Election ballot,” Kaufman said.
Outside of the immediate future, Jeremy Berry, a partner with Chilivis Grubman in Atlanta, expects election lawyers to be “busy in and out of court this fall and after the election,” because the presidential election could be close in many states, particularly with Biden’s “decision not to seek reelection.”
Berry said, “We have seen the rise of litigation surrounding elections in recent years to challenge election laws, voter registration efforts, voter eligibility, election results and much more.”
