2018 CLSA President Barbara G. Werther Interviewed by G. Steven Henry
Barbara, thank you for taking time with us so that we may get to know you better. You have truly been a construction law insider for quite some time. Your leadership and innovation, particularly in developing a stronger women’s bar in the specialty, are very well-known. As a younger lawyer, how did you gravitate toward construction law and what was its appeal to you?
As a second-year law student at GW, in 1976, I lucked into a great law clerk position with the leading government contracts firm at the time in DC, called Sellers, Conner & Cuneo (it no longer exists by that name). I also got into the government contracts program at GW under Professor John Cibinic, who had been my contracts professor the year before. While the firm specialized in the supply side of government contracts, I realized that the “science” of the subject matter was appealing. In 1981, I became an associate at the DC office of Pettit & Martin (which no longer exists). My mentor there was Tom Wheeler, now Judge Wheeler at the Court of Federal Claims. He and I worked on a construction case, involving the construction of a plant in Hugo, Oklahoma, and I was hooked. By 1985, I made a deal with Bob Watt at Watt, Tieder to start as an associate, doing all construction cases, and by 1987, I was made the first woman partner at that firm. Construction is highly visual, and so am I, so it was a great fit for me. At first, many of my cases were on behalf of contractors against the federal government, but my practice quickly expanded to the private sector.
You are recognized as one of the leading construction and government contracts attorneys in the United States. From your Washington, DC, base, you have handled some of the more high-profile government cases over the past couple of decades. Please tell us how you secured the first and only case in which the court overturned the Navy contracting officer’s non-responsibility determination and directed an award to a contractor.
A contractor’s responsibility, particularly in 1997, before the Todd decisions, was mostly left to the discretion of the contracting officer. I represented a general contractor, The Ryan Company, on a number of cases, but Jack Ryan came to me with a matter where his company had been bounced from a Navy procurement at Miramar (in California) for being non-responsible. Jack claimed that the basis for the non-responsibility determination was not founded in the written record, and that The Ryan Company had not only performed prior contracts well, but also had been publicly recognized for its achievements. We reviewed the government’s published performance evaluations, and discovered that, indeed, the findings of the contracting officer on the Miramar procurement were not based on the published evaluations, but seemed to be coming from left field. When we drilled down more, we found that the contracting officer had made certain assumptions that were not founded in the written record. For example, The Ryan Company had completed a similar project within the contract time, as extended by the government, but the contracting officer determined that the Company had not completed the project timely because the original contract completion date had not been met, but instead, extended. We found several examples of this arbitrary and capricious conduct the more we examined the record. In those days, we had to file in federal district court for an injunction. We were lucky to draw Judge Harold Green in DC, who found the Navy’s position lacking. The judge granted a preliminary injunction in our favor. Although the Navy tried to take an emergency appeal, we were able to settle the case with the Navy, and successfully recovered for Ryan what it would have earned in overhead and profit had it ever set foot on the job, without the risk of doing so.
In 2006, you hosted the first Women in Construction Conference (WIC), by women for women in all aspects of the construction industry. The conference continues to be an overwhelming success. How has the WIC been able to substantively mobilize women in the profession at a greater level than other women’s associations in law?
The idea behind WIC was to provide a safe space for women in the industry to network and to find mentoring. Several of my friends and I who considered ourselves (then) “seasoned” decided to put on a show, in the words of Mickey Rooney and Judy Garland, and we are approaching our 12th year in October. I don’t know if WIC has been able to “substantively mobilize women in the profession at a greater level than other women’s associations,” but I can say that we have been increasing our numbers of attendees and sponsors every year. We have also created the Women in Construction Scholarship to the ACE Mentoring Program. We are very proud of this relationship, as we sponsor two aspiring students in college who are interested in either architecture, construction or engineering.
You won the largest jury verdict ever in a commercial case in Jackson County, Mississippi, for a subcontractor on a project that involved the dismantling of a fertilizer-manufacturing facility. How did your Deep South court experience differ from venues nearer DC?
I have no experience in the Deep South. But, I did have an excellent local counsel, William T. (“Billy T.”) Reed, who grew up in Pascagoula, Mississippi, and who has practiced law there for his entire career. He was a huge asset because most folks on the jury knew him. It gave me instant credibility. Also, our team knew the contract inside and out, which also played well with the jury. Insofar as comparisons with DC, I am not in a position to make them. I have had 4 jury trials, and they were all with juries who were intelligent and eager to understand. I have only polled the jury in one case in Philadelphia which settled mid-way through the plaintiff’s case. Polling a jury is a wonderful experience because it gives counsel insights from people who are hearing the case for the first time and who have to decide. My very limited experience with juries tells me that they are not fooled.
In looking at your background and activities, am I correct that you have been on the University of Pennsylvania Lacrosse Board since 2004, coached boys’ lacrosse, won an equestrian event, competed as a triathlete and serve on a golf tournament committee? That resume would be impressive for an Olympian. You are also very active in the community, working with the Leukemia and Lymphoma Society on its National Capital Region Executive Board and a steering committee for the American Heart Association. How do you balance your sporting and charitable interests with such a busy practice?
My 3 children are grown, which helps. But, if you love sports, and I do, you make time. I also try to drag my clients into my charitable activities, as these events are good for business development.
Maintaining balance may be like yoga which I have recently started. The goal in yoga is not to become great at it but to keep practicing it. Rather than trying to stay balanced I think of myself practicing balancing over and over again. As long as I keep practicing finding balance, I will find it. Of course, I will lose it. But I will find it again.
What do you find most interesting about practicing law in the epicenter of political power?
No comment, given the events that have recently transpired. Every day there is a new dimension of insanity described in the newspaper. I have never read the paper so avidly as I do now.
On my next trip to DC, how about lunch at Martin’s and then you point out to me the specific house JFK and Jackie lived in on N Street before he was elected President?
Happy to, but I will have to do some research, because I’ve never been there.
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 have not participated in any one day arbitrations, so I am not qualified to comment. However, if the case can be streamlined in a way that both side have an opportunity to thoroughly present their positions in one day and the arbitrator(s) give both sides a fair shake, then I would probably be in favor of it.
What advice about construction law practice would you give the younger you?
I am not sure that advice about construction law practice is any different than the advice in general I would offer a younger me. So I will keep it simple: everything happens for reason, focus on one thing at a time (you can have it all, but not at once), you can plan ahead but your plan will definitely change when the time comes, trust your instincts, and take a leap of faith in yourself.
How should a lawyer face his or her fears?
Fear can be debilitating. My horses have taught me courage, because I’m galloping around a course, jumping fences that do not fall down. A judge yelling at me is not nearly as frightening as jumping around that course. That aside, I like to identify the factual basis for the fear and then figure out what my responses will be to each potential turn of events. Moreover, I have been in two law firms that went bankrupt, so there isn’t very much that I’m afraid of at this juncture.
Of all the accomplishments in your career, what do you consider your greatest achievement?
My three children who are wonderful people; they remind me of what’s important.
To what destination do you go to find your own version of solace?
It sounds pedantic, but I like the beach. Solace, however, is never achieved. Sand between my toes is achieved. A good book. Great scotch.
What is your greatest extravagance?
We are on the austerity program because we are renovating our house. There are no extravagances.
Lawyers tend to travel a great deal. What are some of your favorite cities or places and what fascinates you about them?
From one extreme to another: The River Boat Tour in Chicago as long as it isn’t freezing. The architecture is just amazing. Riding and rafting in Deer Valley, Utah. Beautiful and rugged.
What has been the biggest change in the way construction law is practiced between the time you first began until now?
We used to go through drawers of paper in discovery. Now all of discovery is electronic and costs five times as much. Also, when I first started practicing, there was no such thing as the internet. Mail was snail mail. We actually got to think for a minute, instead of having a client or partner demand a response immediately.
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. 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?
Diversity creates a richer life experience. What if everyone who surrounded you was exactly like you, in every way? Where is the fun in that? We need new ideas, views, and practices to stimulate and inspire us, to show us the way others think, celebrate and live. Together our differences make a stronger and more dynamic world community. Even in the face of intolerance, discrimination, and violence, we must not forget to spread the word about the importance of diversity and to respond by celebrating of our differences.
How would you like to be remembered in life?
Haven’t quite figured that out yet. But I think the fact that I made enough noise in the world that I am remembered would be an amazing achievement. You can’t ask for more than that.
What is your motto?
Let me borrow from Maya Angelou: “Do the best you can until you know better. Then when you know better, do better.”
What object in your office serves to re-energize you when your mood needs an adjustment?
CLSA President Barbara G. Werther of Troutman Sanders, LLP in Washington, DC, and is recognized as one of the leading construction and government contracts attorneys in the United States with more than 35 years of experience in construction and government contracts law. She has been resoundingly and consistently recognized as being one of the top lawyers in construction law. She is a Fellow in the American College of Construction Lawyers, as well as recognized by Chambers and listed in Best Lawyers in America, Construction Law (2012-2017). Ms. Werther has lectured extensively to clients and various trade associations on a variety of construction law topics. Her expertise and experience is reflected in her comprehensive practice. She is known as an expert on contract terms and conditions for developers and owners, and focuses on contract drafting and negotiation. She also represents owners, contractors and subcontractors in litigation involving scheduling, delays, inefficiencies, changes, differing site conditions, and terminations for default.
Ms. Werther’s trial accomplishments are substantial. Some of her successes include winning the largest jury verdict ever in a commercial case in Jackson County, Mississippi, for a subcontractor on a project that involved the dismantling of a fertilizer-manufacturing facility; settling a nine-figure claim for alleged defective windows where the plaintiff had already prevailed in one trial and sought to enforce that judgment in 38 other lawsuits; obtaining a rare summary judgment on the behalf of a plaintiff contractor in a default termination case against a subcontractor; and securing the first and only case in which the court overturned the Navy contracting officer’s non-responsibility determination and directed an award to a contractor, among many others.
In 2006, Ms. Werther hosted the first Women in Construction Conference (WIC) in Washington, DC, by women for women in all aspects of the construction industry. Today, in its 13th year, the conference boasts 300+ attendees, with an all-day event featuring five panels, a keynote speaker and a speaker/sponsor reception the night before the conference. WIC is a non-profit organization with a Board of Directors that has created a WIC Scholarship to the ACE Mentoring Program.
Ms. Werther excels as a trial lawyer and as a skilled arbitrator (AAA) and mediator. She has completed advanced mediation training with the Center for Dispute Settlement at Judicial Arbitration and Mediation Services, Inc. (JAMS) and employs uncompromising objectivity in resolving multi-party, complex case disputes where the parties appear to be unyielding.