BOOK CLUB SERIES: Everything You Want to Know About Construction Arbitration But Were Afraid to Ask

John Foust (left) and Andy Ness (right)

I recently had the pleasure of speaking with construction law notables John Foust and Andy Ness to discuss the release of their new book—Construction Arbitration: The Advocate’s Practical Guide. The goal of their book: to teach attorneys what they need to know to maximize their effectiveness in the arbitration context. To that end, the book covers every aspect of the arbitration process including motion practice, conduct as an advocate, presentation of the case, and post-hearing submissions. Read on for Andy and John’s candid, behind-the-scenes take on how this book came to be and why you should get your copy now, while supplies last!

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Q: Who is the target audience for this book?

Andy:  In the editing process (and in writing my own chapter on Navigating an International Construction Arbitration) I pretended that I was speaking with a construction lawyer who was a few years out of law school, with some litigation experience, who was getting ready to take on a significant and complex construction arbitration for the first time.  The book presupposes knowledge of the basics and tries to anticipate the questions that would be asked when you are trying to think through the whole arbitration process from start to finish. What should my pleadings look like? How much discovery am I likely to be able to obtain? How should my demeanor be different from what I would do in a courtroom? How much should I object during the hearing? In a nutshell, it’s “What do I need to know to maximize my chances of success in the arbitration setting?”

Q: What was the inspiration behind this book? Why this topic and why now?

John: There is nothing like it out there that we could find. There are a couple of much longer, scholarly treatise-like books about arbitration law, but nothing that was concise, readable, and practical. We wanted to provide something useful and accessible that would get you on the right track in a construction arbitration, right from the start — things that our authors had to learn on-the-job. As to timing, it just seemed overdue!

Q: Is this the first time this topic has been tackled in an ABA-sponsored text? What do you think sets this book apart from the others?

John: It’s the first, all right, and we hope it will be something of a model for other Forum books down the road. Keep it concise and practical, rather than trying to produce a lengthy tome that looks impressive, but will mostly just sit on a shelf.

Q: How did you go about creating the framework for the book?

Andy: We intentionally took a soup-to-nuts approach, consistent with the goal to get the reader ready for every stage and part of the arbitration process, from deciding whether arbitration is right for the dispute (where you have that option) to handling a post-award motion to vacate.

Q: The list of people who authored chapters in this book reads like a veritable “who’s who” in construction law. What was it like collaborating with such an impressive group of folks?

Andy:  It definitely is an All-Star team of authors, and that was the idea from the outset. Let’s find the best group of people who have had a highly successful track record as arbitration advocates, and (for the most part) have, in more recent years, seen arbitrations mainly from the vantage point of an arbitrator. Six of the ten lead authors are former Forum Chairs, and all ten are members of the American College of Construction Lawyers.

Working with this group was a lot of fun and pretty easy. While they are all busy, they turned in high-quality first drafts, mostly on schedule. And they all are self-deprecating as a rule and keep their egos in check.  They appreciated that, despite extensive experience, they don’t know everything and were receptive to adding ideas and insights where we, as editors, suggested something.

Q: What was the biggest challenge you encountered in putting the book together? Any regrets/lessons learned you care to share?

John: Putting together any book, even when 90% of the chapters are authored by others, is a big undertaking. No regrets, but it always works out to be considerably more effort than you anticipated at the start. The biggest challenge is just keeping at it; finding time every month to push the book ahead, for seemingly endless months, even when you are busy with work that you get paid for!

Q: You state in the book's introduction that even the most seasoned construction attorney can benefit from this book...As experienced practitioners yourselves, what did you learn in putting together this book that surprised you?

Andy: Perhaps surprisingly, I learned the most from the international arbitration chapter that I wrote. I asked two other chapter authors (Wendy Venoit and Zach Torres-Fowler) who do a lot of international arbitration to review and comment on my draft. Each of them brought out several interesting points from their own experience that I had not encountered, and those added real value to the chapter. It was also interesting to see that the authors of the discovery-related chapters (Deb Ballati and Jim O’Connor) had some different viewpoints as to how much discovery is commonly allowed.

Q: In what ways has construction arbitration changed or evolved in recent years? Will this book provide some “continuing education” on the current best practices in this space?

Andy: Construction arbitration evolves at a more rapid pace than most appreciate. This occurs as different ways of speeding the process and making it more efficient are tried and spread organically when they work well. What we are seeing currently is greater adoption in the U.S. of practices used with frequency in international arbitration, like the use of witness statements in lieu of direct examination and simultaneous testimony from matched expert witnesses. This borrowing of successful ideas used elsewhere will likely only accelerate as more advocates and arbitrators have favorable experiences with them. We included discussion of many such new ideas and techniques, and not just in the international arbitration chapter, to help this process along and keep the book relevant, hopefully for many years to come.

CLICK HERE TO PURCHASE A COPY OF

CONSTRUCTION ARBITRATION: THE ADVOCATE'S PRACTICAL GUIDE 

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Editor Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.