Questions & Answers
Sarah Biser is a partner in the New York office of Fox Rothschild, a national firm with 27 offices and over 800 attorneys. Ranked by Chambers USA as a leader in construction law for 10 consecutive years, Sarah represents owners, contractors, developers, architects and engineers, both in the USA and abroad, in all stages of the construction process. She focuses her practice on large, capital-intensive construction projects, with an emphasis on drafting and negotiating contracts for complex and unique construction and infrastructure, and litigating disputes involving such projects in the courtroom and in domestic and international arbitration.
Describe your career to date.
I had the good fortune to start my career in New York City under the mentorship of one of the deans and trailblazers of construction law in the USA, Bob Rubin. I specialised in construction early on and, like my mentor, I handle both transactional and dispute resolution aspects of construction matters. I represent international and domestic owners, contractors, subcontractors, design professionals and suppliers. I also co-author the leading treatise on construction law in New York published by Thomson Reuters, and the New York chapter of Fifty State Construction Lien and Bond Law.
What did you find most challenging about becoming a construction lawyer?
There are very few women in the construction field. From the outset, I had to explain that I was not a secretary or paralegal. It is rare that I am not the only woman in the room in a meeting, mediation, or arbitration. Pre-covid, when we used to have in person meetings, I would always sit at the head of the table to avoid any confusion as to my role.
What is the most interesting case you have been a part of?
I represent an international contractor that serviced a US Air Force base in Greenland in 1968 when a B-52 carrying four nuclear weapons crashed near the base, scattering radioactive debris over a wide swathe of frozen ground and sea ice. Employees of the contractor assisted the Air Force in a months-long clean-up operation called Project Crested Ice. Several of the employees recently sought compensation under the Defense Base Act, claiming that they developed cancer as a result of exposure to plutonium during the clean-up operation. An administrative law judge and the Benefits Review Board of the Department of Labor rejected the employees’ claims after a lengthy hearing. Their appeal is currently pending in the US Court of Appeals for the First Circuit. I expect that claimants will file an appeal to the US Supreme Court, as they have done on several issues already.
Has the coronavirus pandemic affected the work you are receiving from the construction sector?
Most of my work has been in construction that has been classified as essential. Projects have continued, with some disruption at the outset in manpower and in deliveries of certain materials and supplies. In due course, there will be discussions and work-outs regarding delays and resulting damages, and/or mediation, arbitration or litigation if these claims cannot be resolved.
In light of recent economic changes resulting from the coronavirus pandemic, are you seeing an uptick in clients seeking dispute avoidance?
I think there will be some clients who do not want to spend cash on dispute resolution. However, personally, none of my clients has actively avoided dispute resolution.
To what extent can virtual hearings be relied on to decide high-stakes multibillion-dollar cases between parties?
At this point, we have no choice. Further, in the US, more and more practitioners and judges, arbitrators, and mediators are becoming increasingly skilled at Zoom, Microsoft Teams and other virtual fora. And, as many of us are realising, there are advantages: a client does not have to fly and host a team of lawyers, witnesses and experts to Paris, London, Geneva or New York for a hearing. Covid is forcing the business and legal worlds to rethink best practices for mediation, arbitration and a great deal of court conferences and hearings.
How does your role as an author on construction law enhance your practice?
My role as an author ensures that I am up to date, on an annual basis, on all developments in construction law in New York. The annual updates involve a thorough canvasing of recent case law, and statutory amendments in construction law including the law regarding performance and payment bonds, licensing of design professionals, insurance, bankruptcy, and issues related to domestic and international arbitration.
What challenges do you expect the next generation of construction lawyers to encounter? How might they successfully navigate them?
It is important to keep up with the changes in technology that continue to be introduced in this field such as wireless technologies, enhanced building information modelling, drones, advancement in communications and fabrication of materials used in the construction process. It is also important to be immersed in current trends (discovery, summary disposition, enforcement of domestic and international arbitral awards) and to understand the need for alternative dispute resolution process to avoid lengthy and costly disputes which drive up costs for all parties involved in the construction process.