Leadership Series Episode 25 with Professor Troy Harris
This week Katya is joined by Troy Harris! Professor Harris is an Associate Professor of Law at the University of Detroit Mercy, School of Law and an expert in international arbitration and construction law.
Professor Harris practiced with the Atlanta office of King & Spalding for over ten years. He previously taught at Cornell Law School, Emory Law School, and the College of Management of the Georgia Institute of Technology.
Professor Harris joined the Detroit Mercy Law faculty in 2010. He served as Interm Dean of the law school during the 2013–2014 academic year. Professor Harris is a Fellow of the Chartered Institute of Arbitrators and serves on the International, Commercial, and Construction Panels of Arbitrators of the American Arbitration Association, on the Approved Faculty List for the Chartered Institute, and on the roster of the United States Department of State’s Fulbright Specialist Program, in the area of international arbitration. He is listed in Who’s Who Legal: Arbitration 2015 — present, Who’s Who Legal: Construction 2015 — present, and Best Lawyers in America (Construction), 2013-present.
In this episode, Professor Harris discusses why he chose to pursue a career in law, his law school experience, finding his passion, advice for future and current law students, and how he defines success!
Katya Rowely 0:00
Welcome back, everyone to law school life and beyonds leadership series. My name is Katia and I’m the host of this podcast. On today’s episode, I’m joined by Troy Harris, a construction arbitrator and mediator at Harris arbitration in Detroit. Troy Harris also happens to be my first year contract law professor, we have not had anyone on the show that works within the field of construction law as of yet. So I’m really excited to speak to Professor Harris about this in greater detail, especially about his role as an arbitrator and mediator. So thank you so much, Troy, for coming on the show today.
Professor Harris 0:31
Thank you so much for having me. I’m delighted to be here.
Katya Rowely 0:34
Yeah, we’re so excited to have you here, too. So what drew you to a career in law?
Professor Harris 0:40
Well, it’s interesting, it’s unlike some people who, you know, they are in their last few years of university and think they need to do something respectable. And so they decide, well, I’ll go to law school, that was not my experience. For me, the laws, the only thing that I seriously considered over an extended period of time, and then I think when, when you’re young, everyone has the experience of kind of mentally experimenting with being an astronaut, or a doctor or whatever. And, and I did that too. But being a lawyer is something that just maybe it was watching too many lawyer shows on TV or whatever. But it’s the only thing that really stuck. And as I got into it more, I discovered, believe it or not, it really is interesting. It’s there’s always something new to learn. There’s, it’s always evolving. And the law, one of the things that I like about the law is that it tries to deal with big questions in a concrete way. It’s one of these areas that tries to take, you know, real life and capture, capture the relationships in two dimensions really, for the most part, it’s it’s the law consists of, you know, cases and statutes and things like that, that are written texts that try to capture much more rich and, and four dimensional kind of reality. And so it’s interesting on a lot of different levels. And then just as a practical matter, everyone has legal questions at some point, if it’s just getting a permit to do something, or getting a parking ticket all the way up to the great constitutional questions for our time. So it’s something that I find infinitely interesting, and is the only thing that I’ve ever really been seriously drawn to.
Katya Rowely 2:53
Okay. And so then when you got into law school, was it everything you hoped and dreamed?
Professor Harris 2:58
Not really, I mean, I didn’t, I didn’t quite expect know what to expect. I was a history major. And so I had taken some constitutional history courses, and things like that, but it was very much a big picture kind of approach to the law. And so when I took contracts, I was sort of naively assuming, okay, contracts, I know, have been around since Roman times, if not before, we’re going to hear about the history of contracts. And that was not at all what we were hearing about, but we were talking about was consideration. And all of these, you know, to me, it’s, it seemed like a lot of trying to determine how many angels can dance on the head of a pin, especially when it then turns out that consideration actually isn’t all that important in practice, right? Because of the whole peppercorn theory of consider. So law school for me was not what I was expecting, I was expecting a much more theoretical, historical, philosophical kind of thing, because that’s, that’s kind of where I was coming from as an undergraduate. But as I got into it, you know, do you have to have to kind of give in to how the game is played. And realize, okay, that’s not what this is about. What it really is a lot about is learning some vocabulary, particular to a particular area, whether it’s contracts or civil procedure towards what have you. And learning to issue spot. And so that was that was a different experience for me. And I think for most law students, most people who come to law school have not had the kind of experience that you get in law school.
Katya Rowely 4:47
No, and I think most of us go in blind to we have no idea we’re about to learn, is it going to be super practical or super theoretical, and then it’s kind of as a mishmash of both. So that’s interesting, right? And then, so then did you Like your law school experience,
Professor Harris 5:02
you know, it’d be hard to say that very many people really like law school, like it in the way that they like, you know, other things in life, it was, it was immensely challenging. And I’ve met a lot of really interesting people, it’s provided me with a good living for the past 30 years, whatever. But the experience of law school until you sort of get comfortable with how the game is played, and what law school can do and what it can’t do, in terms of preparing you for life as a lawyer, until you get to that point, it can be very off putting, because you’re like, this is I’m used to being at the top of my class. And, you know, now all of a sudden, I’m like, average, you know. And so it’s a real come down from an ego standpoint for most people, because even people who do really well in one class may not do really well in some other class and hardly anybody, aces everything. And so, it’s, it can be a real ego bruiser. But at the same time, it’s, there is nothing like it in terms of the training that law school provides, by way of analysis, in terms of a very verbal way. There are other fields like chemistry, or math, or physics or whatever the hard sciences that help people learn to think analytically, but not really analytical analytically in a verbal kind of way, it’s analytically in a typically a quantitative way. But law schools terrific as far as really sharpening one’s ability to be analytical with words, and realize just how important words are I tell my students, I probably said this in your class that, that if you’re not a word, person, if you don’t, like, get into the nuances of words, then you’re gonna have a hard time because words make a huge difference. And there’s, it’s it’s a tremendous experience in that respect. But as far as, like, do that I enjoy the people I met, I enjoyed my professors. The material was challenging and interesting. But it was a lot of work. And I can’t say that I enjoyed it in the same way, for example, that I enjoyed graduate school. I loved graduate school, because for the most part, studying something that I was, I already knew something about, I kind of knew how that game was played. I could focus just on the things I was interested in, largely. And it was a tremendous intellectual experience. And I loved it. And I would go back and do that in a minute. Law School, I’m glad to have done, but I wouldn’t want to go through it again. Yeah, I love being a lawyer. And whether as a professor or a practitioner, or any other capacity, I’ve loved being a lawyer. And I have, I guess, kind of a love hate relationship with the law school experience itself, because it is, it is who was very different and challenging and whatnot. And yet, it’s it’s shaped who I became.
Katya Rowely 8:39
And so you’ve actually not found yourself, but put yourself into a really cool area of law, being a mediator and arbitrator. So I’m really interested to hear more about that. Can you first off, like describe the role of an arbitrator in the role of a mediator, please? Sure.
Professor Harris 8:56
The the basic difference between an arbitrator and a mediator is that an arbitrator is somebody who actually decides a case a dispute between two parties, and the arbitrators decision is binding and final on the parties. It’s a substitute for going to court. And so in order for there to even be an arbitration, the parties have to agree to arbitrate. If you and I having to have a dispute, and we can’t resolve it ourselves, then we can either one of us can fall off and go to court, or we can agree that we’re going to submit the dispute to some third party and then we’ll both be bound by that whatever it is. And that third party is an arbitrator is the arbitrator. And so the arbitrator gets to make the decision has the responsibility for making a decision in the form of an award. And that is generally certainly in Canada and the United States is enforceable. As a court judgment in that jurisdiction, as opposed to a mediator, a mediator is really somebody who tries to facilitate a settlement between the parties. And so if parties are at an impasse that you have a dispute, they can’t resolve it themselves. They say, Okay, let’s go to mediation, where you have somebody who the neutral third party mediator, who tries to bring the parties to some sort of agreement to settle their dispute, the mediator doesn’t get to decide the dispute. mediator has no authority or power to force the parties to settle. And there are different styles of mediation. But the basic differences, who gets to decide in an arbitration, it’s the arbitrator decides in a mediation, it’s ultimately the parties themselves who decide how the disputes going to be resolved, if at all, a lot of mediations don’t succeed, and so the parties are left with going back to Okay, we go to court or we hire an arbitrator.
Katya Rowely 11:15
So how far into your career Did you kind of take on these roles? Because I imagine that you would have needed to kind of have a lot of experience and reputation within your legal community in order for people to kind of trust you with these positions is that that’s my understanding of mediation and arbitration, is that correct?
Professor Harris 11:32
Yeah, that’s generally right. Most people come to it, sort of mid to late career. My background is in construction law. And construction disputes, have used mediation and arbitration for a very long time, as their parties have used mediation arbitration as a means to resolve disputes in the construction industry for centuries. And so the, my background as construction started as a construction lawyer, and I moved into the mediation and arbitration work from that. And so that was probably 15 years into my career that I started, I think I got on the AAA, the American arbitration associations construction panel was the first panel I was on. And that was 15, or so years into my career as a construction lawyer. And I think that’s fairly typical most neutrals, which is the generic term for mediator and arbitrator. Most neutrals will get on an institutional panel of some sort, at least in the United States, such as the American arbitration Association, and do a little bit of that work along the way, while they’re still practicing full time as as an advocate for one party or the other.
Katya Rowely 13:14
Okay, because I, I mentioned to my dad, I was he’s a family lawyer in Windsor. And I was like, I don’t really think I am a litigator. I think that mediation is more up my alley, I’m just going to graduate and go to mediation. He’s like, Oh, is that really how it works? You have to quite a few years of experience fers?
Professor Harris 13:30
Yeah, I mean, I think it I can’t really speak to how soon Family Lawyers get into the mediation side of things. But of course, mediations a huge thing in family law. And in, in jurisdictions where you’ve got mandatory mediation, of type certain categories of disputes, at least, it’s a very big, very big field. But yes, generally, people want to know that you’ve actually practiced in the area and kind of know how that area works. Partly because, certainly, you know, one style of mediation is what’s known as evaluative, where the mediator will offer an opinion about what the likely outcome is, if the thing doesn’t settle and goes all the way to court or to arbitration. Well, to give that kind of opinion, you really have to have kind of practiced in the area a little bit so that you know, what’s likely to happen. And so it’s, it’s important to to have that practical experience first, but but then my suggestion for folks, as always, we think they might be interested is to start early, getting whatever kind of training you can get in mediation or arbitration. Because even if you’re not immediately doing work as a mediator or arbitrator, he will help you as an advocate when you’re representing a party in a mediation or an arbitration to understand how the process works, and will just enhance your credibility and marketability in that way.
Katya Rowely 15:19
So do you practice law in the traditional sense at all anymore? Or are you full time mediator and arbitrator?
Professor Harris 15:24
I don’t practice as an advocate. Once in a while, I mean, there will be a matter that will come along. But for the most part, I’m full time in that part of my life, on the neutral side of things.
Katya Rowely 15:43
Okay, that’s exciting. So then my next question is What drew you to construction law? And then do you mind also describing what construction law is, please?
Professor Harris 15:52
Sure. The, what drew me to it was I had a job offer with a construction firm, I had no idea what construction law was. I didn’t take any, I don’t think they had any classes in construction law, where I went to law school. And if they had, I wouldn’t have taken it because it sounds boring. I was very much interested in constitutional law and big picture issues, kind of like I was saying earlier. But I needed a job. I was finishing a job with a judge that I had after law school. And I needed a new job. And I got an offer to work at the small construction law boutique. And I thought, this sounds interesting. One of the things I had learned when I was clerking was that I was really much more interested in in contract disputes than I was other types of disputes and construction law to sort of segue into your other question. Construction laws about 90% contracts. It’s what it’s like manufacturing law, or transportation law or aviation law, it’s one of these things that is an industry focus more than it is a discrete body of law unto itself. As I say, it’s about 90% contract law. The and the rest of it is sort of a grab bag of tort and some constitutional law questions from time to time. But for the most part, it’s it’s contracts towards ADR statutory interpretation, particularly in in Canada, some public law depending on what, what the nature of the project is, insurance, but all of these things, you take separate courses in, in law, school contracts, and insurance, etc. are, you know, have a particular color when you assemble them in that industry, in the construction industry in the same way that manufacturing or aviation or transportation all have, you know, a little bit of contracts and statutory law, etc. And when you assemble the bits and pieces in those industries, it looks a little different. And what it’s different is really the risks that are inherent in each kind of industry, construction laws full of risk, because you’ve got construction projects that are executed in different parts of the world, under different conditions, both weather conditions, geological conditions, political conditions, labor conditions, all sorts of things that, that make, successfully delivering a construction project inherently risky. And that’s what construction law does is attempt to allocate those risks in different ways in light of the applicable law. So in my construction law class, for example, what we do, it’s as it’s about 90% contracts, because we take some standard form construction agreements and explore how they allocate risk in different ways. And so whereas like in first year contracts, you spend most your time reading cases, or first year towards it’s all about case law. If you take a course in, in sales or tax, it’s all statutory and code driven. In construction law, it’s all about the contract and what’s in there and what’s not. And so we spend a tremendous amount of time to selecting standard Form construction contracts, because that’s where the real risk allocation takes place. And what is defining the party’s rights and responsibilities?
Katya Rowely 20:10
I guess I never really appreciated how risky and volatile the construction law industry is, because you’re right, whether it’s going to have something to do with it, that where the project is, is going to have something to do with it. So that is that is really fascinating, actually.
Professor Harris 20:24
Yeah, I mean, I’ve, I’ve found it interesting, the weather you’re talking about, I know it sounds very dry. And it is kind of dry. But once you kind of get it’s like everything else once kind of get into it, then you kind of appreciate the subtleties and what’s going on. At first seems like, Oh, my God, you know, who’d want to do that for the rest of their lives. But, but most areas are like that. I mean, honestly, I think I’ve said this in class before this. practicing law is not like being on suits. Sorry, did break the news, there’s a lot of drudge work involved. Whether it’s reviewing documents as part of the due diligence exercise in a big m&a transaction, whether it’s reviewing documents for privilege, I mean, a lot of this stuff is getting automated now, with artificial intelligence, and so forth. But still, there’s a lot of drudge work involved. And so you have to kind of get into that and, and find the interesting bits where you can. And once you’ve been in an area and practiced it for a while, it gets more and more interesting, because you’re more and more familiar with it.
Katya Rowely 21:39
What is the largest difference between Canadian and American construction law, then?
Professor Harris 21:45
Well, at least speaking on the as to common law, Canada, I can’t really speak to the civilian side and Quebec. But one big difference that I’ve noticed is that, in Canada, the construction, industry, construction projects tend to be more heavily regulated. So for example, in Ontario, you’ve got the construction act that prescribes certain things that in the United States are generally left to the parties to agree to or not. So for example, there’s the amendments to the construction act in Ontario that were just enacted a few years ago, mandating prompt payment and statutory adjudication of disputes. These are things that in the United States for all construction projects, public, private, large, small, whatever. And those are things that in the United States, for the most part left to the parties to agree to or not, there are some prompt payment. And by prompt payment, I just mean that in a typical construction con arrangement, you’ve got the owner pays a general contractor, the general contractor turns around pays various subcontractors and suppliers. And the prompt payment act will require that the owner paid the contractor within X number of days of the contractor submitting its bill contract ready to turn around, pay its subs and suppliers promptly within X number of days from receiving payment from the owner, etc. In the United States, they’re prompt payment acts that different states have enacted but they’re almost uniformly addressed to public projects. And on a private construction project. It’s it’s whatever the parties agreed to. So there’s more freedom of contract in that respect. Same thing with adjudication in Ontario, now, this is kind of a trend in Canada seems to be the adoption with modifications of adjudication, which is adopted, started in the UK and is kind of spread throughout the Commonwealth, but is now and has made an appearance in Canada, whereby disputes can be resolved on a very short time frame between the parties while the project is ongoing. And the the decision is binding on the parties until the project’s finished, at which time then they can go back and revisit the adjudicators decision through arbitration or court litigation. That’s also something that’s not a thing in the United States. If parties want to agree to it, that’s fine, but it’s not mandatory the way it’s mandatory in Ontario. So, in general terms, I think the construction industry and construct private construction projects are more heavily regulated by statute in Canada than they tend to be in the United States. Okay.
Katya Rowely 25:18
Do you have any advice for future or current law students?
Professor Harris 25:22
Yeah, one, I guess I have a couple of thoughts. One is that it’s really important. And this is true for for everyone, not just law students or new lawyers. But it’s absolutely important to take ownership of your own career, and realize that nobody’s going to going to guide you, through you know, from where you are now, to the end of your career, that you have to decide what it is that you’re interested in, and look for opportunities in that area, find ways to get the background and the experience in a given area. So that you can seize the opportunities when they present themselves. And that involves a lot of sweat equity. It’s also important to understand that what you think you might be interested in today may be very different from what you are interested in, in five or 10 years. And so a lot of lawyers and having multiple skill sets in different areas of the law, because they’ve, to some extent, reinvented themselves along the way as, as the market for different legal services changes. And as their interests evolve, they may pick up some new area. And so it’s important to stay flexible. But beyond that, I just say Be patient, because the law is not like some areas in mathematics and, and physics, if you haven’t made a name for yourself, by the time you’re 30. Okay, that’s, you know, you probably aren’t going to because that’s when most of the creative geniuses seem to have done their thing is by is a relatively young age. Law is not like that, it takes a very long time to really build a level of expertise and experience in a particular area and be known in the field. And that’s why sort of the pinnacle of being a lawyer is to get, at least in the common law world is get appointed to the bench, right? Because this is sort of the crowning achievement of what’s been usually a lifetime careers work in, in developing expertise and credibility and reputation. So you have to be patient and not expect that the first rattle out of the box, you’re going to be arguing cases at the supreme court or handling your own, you know, multimillion dollar dispute or transaction or anything like you’re going to be doing a lot of drudge work, but eventually, you will get there. It’s a, it’s a long haul.
Katya Rowely 28:16
How do you define success for yourself? Because I think we were given a piece of advice from Francine Herlehy. I just interviewed her. And she said, it’s very important for law students to define their own success and kind of go with that, because there’s a lot of noise like in like OC eyes and stuff, and maybe you don’t want to do OC eyes and be on the big Bay Street firm. So it’s important to hear this noise, but then kind of put yourself on a path that is aligned with what you believe to be success, success for you. So how would you define success for yourself?
Professor Harris 28:47
It’s a it’s a good question. I, I would echo Francine point, because you do have to look deep within yourself to see where what you’re interested in, matches up with where there’s a need out there. But I think a good test, at least for me is, Do I really look forward to and am I excited about what I’m doing? And the work I do now, I love I mean, I’ve really, I’ve always loved being a lawyer, as I said, some things, of course, are more interesting than others. But I’ve I’ve never regretted being, you know, becoming a lawyer. And I’ve enjoyed, you know, I like the research and the writing. But I also like the sort of hand to hand combat of litigation. I like the transactional work. It’s not the transactional side of things. It’s probably not, you know, what I enjoy as much, but it’s still interesting to me. And so I’ve always, it’s a cliche, but if you love what you do, you will never work a day in your life. And that’s kind of how I feel if I’m in a place where I’m really dreading getting up and going to work, then that’s, that’s not success, in my view. If I’m, if I’m enjoying what I’m doing and looking forward to it, then that’s, I don’t really care how much money I make, it’s never been about the money for me. It’s about am I enjoying what I’m doing and feeling like I’m, you know, contributing to society in some respect. And I’ve got a list of things that I would like to do in my life, as most people do personally and professionally. But, you know, I’ve ticked most of those boxes. And so now it’s just down to, am I really enjoying what I’m doing? And that’s going to different people enjoy different things. One thing I think, particularly, this kind of goes back to your earlier question about advice. Finding a practice area that really suits your personality, I don’t think I could be a family lawyer, like your dad, because at least from what I’ve seen, you really have to be patient with people be able to listen to their stories, allow them to vent, I don’t have a lot of patience for that kind of thing. And that’s just a personality, flaw and in, in my own character, but I’m gonna have a lot of patience for that kind of thing. Give me a box of documents, so that I can figure out what happened, and what the legal significance of it is. And I’m happy as a clam. And, you know, but that’s, that’s my personality. You have to figure out what your personality is like, do you like are you an introvert or an extrovert? Do you like being around people and, and hearing their stories? and that sort of thing? Do you energize by being around people or not? Do you like to have your day and week and month kind of planned out ahead of time? Or do you thrive on getting a phone call, late in the afternoon saying, Hey, we need you, you know, to review this contract and give me your comments by, you know, midnight, if you like that kind of excitement, which I don’t if you’d like but if you do, if that’s how your personality is, then, you know, go into a transactional practice where people will do that. clients will do that call you a classmate and say, you know, we’ve got all the terms agreed, we just need a lawyer to, quote, look it over, which is should always raise a red flag in your mind when when somebody says when a client says that to you. So figuring out what your personality is, like, is a big part of it. But for me, the the combination of things that I do as an arbitrator, I really, I love and I enjoy and look forward to every day. And that’s that’s how I define what success for me. Okay,
Katya Rowely 33:10
that’s awesome. Thank you so much for that advice. And for coming on. This was really, really, this is really, really awesome, because you’re here. Thank you.
Professor Harris 33:16
You’re absolutely welcome. Enjoy the rest of your summer.
Katya Rowely 33:20
And that concludes today’s episode. Thank you so much, everyone for tuning in, as always, and be sure to tune in next week for law school life and beyonds next episode of the leadership series.
