Washington Fellow John P. Ahlers Interviewed by G. Steven Henry
John, thank you for being our first ever interview for Construction Commentary & Review. Let’s do a little retrospective right off the bat. How has the increase in arbitration among construction cases over the last 30 years changed the way you approach different aspects of construction law in your practice?
The increase of arbitration of construction cases over the last 30 years has actually been a good thing. It has made the resolution of construction cases more efficient. Endless costly deposition discovery has been replaced with “laydown discovery.” In most construction cases now we do one or two, maybe three depositions, at most, and no deposition takes longer than seven or eight hours. We have carried that frugal philosophy over into litigation as well. Courts are slowly catching up with that trend. Overall, we believe this approach to dispute resolution has inured to the financial benefit of our clients and our firm.
As a degreed civil engineer and member of the American Society of Engineers, how do you address unacknowledged “gray areas” adopted by your opponent’s expert? Have you enjoyed backing some of them into a corner?
Having a master’s degree in civil engineering has been helpful as a construction lawyer, but, remarkably, the lawyers who oppose me generally seem to be technically very “engineering savvy,” and have a good grasp of the technical issues. There was one case involving an earth dam in which I felt that my technical expertise was the deciding factor in the outcome. It seemed to be very difficult for the opposing lawyers to grasp the fact that the dam failure was caused by a design issue rather than a construction issue. It was evident by the soils testing (some very technical soil mechanics issues) that the designers had not taken into account the unique moisture characteristics of the dam’s clay core. We were able to convince the jury that the characteristics of the soil, which were overlooked by the engineers, were the reason for the dam’s failure.
What is the most interesting item of demonstrative evidence you have ever used in a construction case in trial or arbitration?
On the dam case that I mentioned above, we went to the dam site and dug up approximately a cubic foot of clay and demonstrated to the jury how adding moisture to the clay caused it to liquefy, which we understand was instrumental in the jury’s decision (the judge did not let us poll the jury after the case).
As Senior Editor of Construction Law Blog, what do you find to be of intense interest to its followers?
The most feedback we get on our construction blog is to articles, cases and administrative law changes to established construction principles, such as the implied warranty of the plans and specifications. When a recent case seemed to throw out that principle, we were flooded with responses.
In matters where you have served as an American Arbitration Association arbitrator, and as someone who has tried numerous cases in court, do you find yourself weighing evidence otherwise admissible in court differently than that which would not be admissible?
No. In the state I work in primarily (Washington), an arbitrator is not bound by the law of this state in coming to his or her decision. Nevertheless, in deciding cases as an arbitrator, although we will admit evidence that is not otherwise admissible in court, I generally do not give evidence that would be inadmissible in court much weight.
What do you think of the one-day arbitration concept, where you pick and choose your best shots and present them in a condensed fashion?
I am a fan of resolution-oriented arbitration. Our clients, generally construction firms, want decisions that are swift and inexpensive. The biggest client criticism of construction lawyers remains the cost of getting a dispute resolved. Sometimes as lawyers we want to make sure that every fact has been discovered before we get to resolution. The expense of going through that detailed discovery process is generally not “worth it” to our clients. I am an enthusiastic supporter of arbitration processes that resolve disputes quickly and less costly than going to court.
What advice about construction law practice would you give the younger you?
My advice to the younger construction lawyers in our firm is to complete your assignments before they are due and treat your client’s money as if it were your own. (That is, be efficient and prompt in resolving matters.) That simple habit will pay dividends in future clients and assignments.
Softball time. You went to Washington State for undergrad, followed by Stanford, then Gonzaga Law. Whose hat do you wear when they play one another in basketball?
In basketball, there is no question that among the Cougars (Washington State), the Cardinals (Stanford) and the Bulldogs (Gonzaga), I am an avid Gonzaga fan. Gonzaga is a small university. When I went there they had a small but very enthusiastic basketball program that was nowhere near where Gonzaga has advanced to today. GU is small and, therefore, not able to recruit top players, but seems to always have an excellent team. It is not an individual player or star that is the Bulldogs’ strength; rather, it is the team that prevails. When the players in the bottom of the lineup are performing, and the team comes together as a whole, they are unbeatable. That unity transfers over to construction law as well. If we can come together as a legal team, we achieve the best results.
How should a lawyer face his or her fears?
The best way, in my view, for a lawyer to face his or her fears is to be adequately prepared. Fear is the opponent we carry with us. Preparation quells that opponent.
Of all the accomplishments in your career, what do you consider your greatest achievement?
The greatest achievement in my career was participation in the establishment of a highly-competent and well-regarded law firm that is a great place to go to work each day.
To what destination do you go to find your own version of solace?
My version of solace is found in personal meditation. I am a yoga enthusiast.
What is your greatest extravagance?
The greatest extravagance I gave myself is a trip I took with my daughter to South Africa to dive with the great white sharks in the cold waters off the coast of South Africa. As our 26th president, Theodore Roosevelt, said “It is an incalculable added pleasure to one’s sum of happiness if he or she grows to know, even slightly and imperfectly, how to read and enjoy the wonder-book of nature.” Diving with the great whites was a serene and indescribable pleasure.
If you could meet anyone from history, who would it be, and why?
Thomas Jefferson, the primary author of our constitution. I would like to gain some insights on how this gentleman farmer’s philosophy so influences our world today.
Lawyers tend to travel a great deal. What are some of your favorite cities or places and what fascinates you about them?
One of my favorite cities is Rome. The influence Rome and the culture of Rome had and has on our society today is astounding. I am fascinated by the fact that a city on the Italian peninsula grew in status to dominate the world for centuries.
What has been the biggest change in the way construction law is practiced between the time you first began until now?
The biggest changes in construction law that I have experienced are two-fold: 1) the departure from cases being heard in court to more prevalent mediation and arbitration of construction matters; and 2) the manner in which we communicate now is much different than letters and carbon copies. (When I started, we were still using carbon paper to create copies, and the physical time between the first and second draft was substantial enough that you didn’t have the luxury of doing multiple drafts.) Email communication has created expectations of immediate response; sometimes within hours, not days; a big difference from the “snail mail” days of my professional beginning.
Diversity, along with excellence and integrity, is central to the CLSA’s mission and plays a fundamental role in our selection of Fellows, growth, and goals. We want to quote you on diversity in the next issue of Construction Commentary & Review, as well as in the Diversity Law Institute’s new website. In a word, sentence, or paragraph, what, in your opinion, is the significance or importance of furthering diversity within the profession of law and throughout our system of justice?
Our strength as a country has been our diversity. The more diverse opinions and experiences that we can bring to the table to formulate tactics and strategy in disputed matters, the better decision making occurs. Our firm prides itself in representing numerous minority women and disadvantaged construction businesses, and being a diverse group of motivated professionals. Diversity is not just an obligation that we owe as citizens of this country, it is good business, and it strengthens our firm economically.
How would you like to be remembered in life?
I would like to be remembered as a good father and husband. My wife, Lynn, and I have three children who are all well-educated and employed. My daughter, Julia, is a court clerk. My two sons are financial advisors. They are great citizens who have given me much joy and, fortunately, very little heartache.
What is your motto?
My motto is assignments should be done absolutely, positively before they are due, and calls/client contacts should be returned before the end of the day, if at all possible, and no later than the next day.
What object in your office serves to re-energize you when your mood needs an adjustment?
When my mood needs an adjustment, I am fortunate enough to look out the window in my office and see the beautiful Puget Sound bay and Olympic mountains in the background. That panorama always re-energizes my mood.