Short answer: before retaining a construction delay expert, counsel can ask about conflicts, whether the expert's qualifications match the actual question, which schedule analysis method fits the records, what records the expert will need, how evidence that cuts against the client will be handled, and what the expert has said before under oath. The answers matter because the opinion is only as strong as the records and method behind it, and it will be tested by the other side.
1. Can you clear conflicts before we talk substance?
Start with party names, related entities, the project, and the other consultants involved. A careful expert will run the check before hearing the facts and will ask you not to send substantive material until it clears. Ask whether the firm has worked for or against any party, design professional, surety or insurer on the project, and whether any team member worked on the project itself.
2. Do your qualifications match this question?
"Delay expert" covers different work. Schedule analysis, delay damages, disruption and contract administration are related, but they are not the same opinion. Ask who will testify, who will do the analysis, and what each person's background is. Useful signals include hands-on project management or field experience, scheduling experience with the software used on the project, and relevant certifications. Licenses and degrees support qualification; they do not substitute for a method that fits the facts.
Ask too whether the expert has worked for both owners and contractors.
3. Which method would you use, and why does it fit these records?
Common approaches include windows analysis, as-planned versus as-built analysis and time impact analysis. AACE International Recommended Practice No. 29R-03, Forensic Schedule Analysis (April 25, 2011 revision), describes a range of forensic schedule analysis methods and states that it is not intended to be a prescriptive standard, and that a reasoned departure from its protocols is not automatically an error. That means the expert has to explain the choice.
Good answers connect the method to the records: whether there are reliable contemporaneous updates, whether the baseline was accepted, what the contract says about time extensions and schedule submissions, and whether the question is about a time request, actual completion or a critique of someone else's analysis. Be cautious if the method is chosen before the expert has seen the schedules.
4. What records will you need, and what happens if some are missing?
Native schedule files usually reveal logic, calendars, constraints and settings that PDFs do not. Daily reports, RFIs, submittals, meeting minutes, photographs and correspondence explain what happened in the field. Ask the expert to identify the records needed for each opinion and how gaps will be handled.
An opinion is only as strong as the records behind it. Ask the expert how each number in the report will be tied to a record.
5. How do you handle evidence that cuts against our position?
An expert's value depends on being believed. Ask how the expert reports findings that do not support the client's position, and how the report will describe them. Ask whether the expert will test alternative assumptions where a disputed fact matters, and how the report will describe the limits of each conclusion.
6. What have you said before?
Request the CV and testimony history and ask about prior published positions on methods, concurrency and damages. Inconsistency between what an expert wrote or testified in an earlier matter and what the expert proposes now is a common line of cross-examination. Ask whether any court or tribunal has excluded or limited the expert's testimony, and why.
7. How would you approach concurrent delays?
Ask how the expert would identify delays that affected the critical path in the same analysis period, how independence between delays would be examined, and which records would be used. Ask the expert to keep the schedule analysis separate from questions of contract interpretation and law. How concurrent delay is treated depends on the contract and applicable law, which are for counsel and the tribunal. For background on the terminology, see What is concurrent delay? How AACE RP 29R-03 defines it; for the methods themselves, see How schedule delay analysis methods work, and what each needs.
8. How would a staged engagement work?
A focused early review can identify missing schedule files, test the baseline and updates, and narrow the issues before a full analysis is commissioned. Ask what an initial phase would cover, what it would not, and how findings will be communicated. Questions about consulting versus testifying roles, and about what communications and drafts may be discoverable, are for counsel to decide under the applicable rules and forum.
A short checklist
- Conflict check completed before any substantive discussion
- Testifying expert and analysts identified, with qualifications matched to the question
- Method explained in terms of these records and this contract
- Record needs listed, with a plan for gaps
- Approach to findings that do not support the client's position, and to alternative assumptions, discussed
- CV, testimony history and prior writings reviewed
- Approach to concurrent delays explained
- Scope, phases and timing agreed
About Oxley
Oxley provides construction delay expert witness services from Clearwater for matters primarily in Florida, with more than 10 out-of-state cases and consulting matters. Oxley is led by Daniel R. Zorrilla, J.D., BSBC, CGC, CFCC.
This article is general information, not legal advice. An opinion in any matter depends on that matter's records and assignment. How a contract or the law applies depends on the facts; consult counsel.