LOS ANGELES – Maintaining ethics in the high pressure world of construction disputes can be difficult. As director of Complex Construction Practice at BRG, Thanh Do, PhD, PE has experience in a variety of cases. He navigates the difficulties with a relatively simple mantra; Stick to the facts.
Third Thursday caught up with Do at his Los Angeles office to discuss ethical considerations, problematic narratives, and communicating with outside and in-house counsel.
Third Thursday: What are a few of the challenges in high stakes disputes?
Thanh Do: One of the biggest challenges is that the facts are often still developing. At the outset of a dispute, project participants may have incomplete information, differing recollections, or strong views about what went wrong. Technical consultants and experts must be careful not to form conclusions before sufficient investigation has been completed.
Another challenge is to maintain objectivity. The engineer’s role is to provide an honest technical assessment, not to justify a predetermined position. A third consideration is preserving evidence and accurately communicating technical findings. Early decisions about document collection, site inspections, testing, and internal communications can have significant consequences later if litigation develops. Engineers must ensure that their analyses remain grounded in facts, accepted engineering principles, and transparent methodologies.
Third Thursday: What happens when an expert’s findings contradict the client’s narrative?
Thanh Do: That situation occurs more often than many people realize. When an expert’s findings differ from a client’s initial assumptions, the expert’s responsibility is to communicate those findings clearly, candidly, and professionally. The purpose of engaging an expert is to understand what actually happened, not simply to confirm a preferred narrative.
Third Thursday: How can these findings benefit clients?
Thanh Do: In many cases, these discussions help clients make better strategic decisions. Sometimes the findings reveal weaknesses in a claim. Other times they identify shared responsibility or uncover technical issues that had not previously been considered.
While those conversations can be uncomfortable, they often provide significant value by helping parties realistically assess risk and avoid pursuing positions that are unlikely to withstand scrutiny. Ultimately, credibility is one of an expert’s most important assets. Once an expert starts shaping opinions to fit a client’s narrative, that credibility can be difficult to recover.
Third Thursday: How do in-house and outside counsel (and engineers) ethically manage communications?
Thanh Do: The key is clarity regarding roles, objectives, and information flow. From the engineering side, communications should focus on factual observations, technical analyses, and clearly identified assumptions. Engineers should avoid speculation and should distinguish between facts, opinions, and unresolved issues.
For legal teams, one challenge is coordinating information among multiple stakeholders while maintaining appropriate confidentiality and privilege protections. In complex construction disputes, communications often involve owners, contractors, designers, insurers, consultants, and counsel. Establishing clear protocols early helps reduce misunderstandings and minimizes the risk of inconsistent messaging.
Perhaps most importantly, all participants should remain focused on developing an accurate understanding of the underlying facts. Effective dispute resolution becomes much more difficult when stakeholders receive different versions of the technical story.
Third Thursday: What questions did you hear from CSC attendees on this topic?
Thanh Do: One recurring question involved the appropriate role of experts during the early stages of a dispute. Many attendees were interested in how experts can help evaluate claims, identify weaknesses, and support resolution efforts before positions become entrenched.
Another common theme was the growing use of technology and artificial intelligence. Attendees wanted to understand where these tools can improve efficiency and where professional judgment remains essential. My view is that technology can be extremely helpful for document review, data analysis, and issue identification, but engineers and lawyers remain responsible for the conclusions ultimately reached.
Finally, many attendees were interested in how organizations can encourage candid internal discussions without creating unnecessary risk. The consensus was that early, honest technical assessments often lead to better outcomes than allowing assumptions or organizational pressures to drive decision-making.