Turning Delay Analysis into Persuasive Evidence: A Lawyer’s Guide

Summary Paragraph:

This article, excerpted from Michael Valo’s book Delay and Disruption Claims in Canada (Toronto: LexisNexis, 2025), explains why the most persuasive schedule delay expert evidence is built through close, principled collaboration between counsel and the expert, not by handing over documents and waiting for an opinion. With reference to key Canadian authorities, it outlines practical strategies for effective collaboration, including complete information sharing, protecting the expert’s independence and impartiality, translating technical delay analysis into a clear narrative, and thoroughly preparing for testimony and cross-examination.

Too often, schedule delay experts are handed a stack of project schedules and other project documents and asked to come back with an opinion on the primary causes of delay allocated to the appropriate party. Yet, the most effective delay reports, and convincing delay opinions, are the product of close collaboration between lawyer and delay expert. Collaborating with an expert does not mean providing the expert with an opinion to be substantiated, and does not mean directing or interfering with the expert’s analysis and investigation, which would be improper. Instead, lawyers should assist by identifying legally relevant delays and ensuring that the expert has access to all relevant information, whether helpful or otherwise, to bolster the credibility of the expert’s analysis.

In practice, working closely with an expert means helping pinpoint the delays that are legally relevant, and providing clear guidance on contractual terms, jurisdictional nuances, and legal tests that apply to delays, concurrency, or lost productivity claims. It also means complete information sharing, including good and bad facts and documents. Finally, lawyers should provide direction to experts on what key points to focus on in their reports and testimony to ensure the expert is able to communicate clearly, credibly, and persuasively.

The importance and value of lawyers working with experts was recognised by the Ontario Court of Appeal in Moore v. Getahun.ⁱ In that case, the Court held that it is not only appropriate but essential for counsel to consult and collaborate with expert witnesses in the preparation of their reports. The Court explained that lawyers must explain to experts their duties to the court, clarify the relevant legal issues, and assist experts in “framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case”.ⁱⁱ

The Court also held that, in Ontario, the law does not impose a standard obligation to produce draft expert reports. Production of an expert’s notes and drafts may only be ordered if there is reasonable suspicion that counsel has improperly influenced the expert.ⁱⁱⁱ

Working with experts is, of course, a two-way street, and there is much to be gained by the lawyer in working closely with a delay expert. Successful delay cases depend on clear and compelling storytelling. Working closely with an expert can help lawyers to integrate legal arguments and technical analysis into a coherent narrative. Collaboration allows the lawyer to effectively translate the expert’s technical findings into a persuasive storyline, clearly illustrating how events led to delays, who is responsible, and why compensation is justified. This cooperation is also invaluable in a lawyer’s preparation for cross examination of both fact and expert witnesses at trial or arbitration.

The balance of this article addresses four key factors for effectively working with experts: 1) complete information sharing, 2) safeguarding impartiality and independence, 3) shaping a clear and compelling narrative, and 4) thoroughly preparing for hearing.

1.1 Complete Information Sharing

A delay expert’s role is to provide his or her opinion on the critical path of the Project, and the causes of elay to that critical path based on the facts of the case. Ensuring that an expert has access to all the facts and available documents, and a well-defined mandate or set of instructions, is perhaps the most important role for counsel to play. Getting deep into the details of the project and particularly the project documents can be crucial. In Graham Construction & Engineering (1985) Ltd. v. LaCaille Developments Inc.,^iv for example, the attention paid to details by one expert in the evidence provided led the court to prefer his evidence over that of the other party’s expert.

Understanding critical path delay to a project requires both a broad and deep view of available project information because the nature of construction delay is such that it can be influenced by a myriad of tangible and intangible issues, and seemingly unrelated construction activities can have unanticipated influence on each other. Thus, to understand all the various interactions on site that influence the critical path, a delay expert often has to look at the whole project, even when a delay is isolated in time, or to a specific project area. To be credible, an expert must therefore have access to complete project information, and ideally, project personnel.

It is critical therefore that lawyers ensure that experts have access to the good, the bad, and the “ugly” documents upfront and early. Withholding critical documents, information, or context will only hurt a delay case in the long run. An incomplete factual foundation will almost always be exposed in cross examination, to the discredit of the expert witness. Most importantly, ensuring transparency and access to all project records to an expert will give the expert the greatest opportunity to consider and address weaknesses in the delay analysis upfront and head-on, avoiding uncomfortable and detrimental surprises during cross examination.

Providing open and complete access to information and documents will only be effective when the legal team has defined a clear mandate and scope of investigation through a set of clear formal instructions for the expert to rely on. Construction projects are notorious for generating an enormous volume of documents that can easily overwhelm or distract from the issues critical to the case. A well-defined scope is necessary to avoid an expert straying into irrelevant issues.

It is crucial that the expert identify the source of the information their report is based on. In Schindler Elevator Corporation v. Walsh Construction Company of Canada,^v limited weight was given to a report containing conclusions that were based, in part, on information provided by party representatives during interviews, but where those individuals interviewed were not clearly identified and information received from them did not appear to have been verified or challenged.

This kind of early and close interaction between lawyer and expert should start early in the mandate and carry forward through to the hearing. Once the expert has had an opportunity to preliminarily review project documents and consider the availability of data, the expert and lawyer should reconvene to discuss the expert’s planned methodology for analyzing the delay. This will allow the legal team and expert to collaborate on strategy and ensure also that the legal team understands the technical aspects of the analysis early on so it can more effectively support the expert, and also better explain the methodology to a judge or arbitrator later on.

It is also of the utmost importance that an expert not come across as merely rubberstamping the position of the party that retained them. As the court pointed out in Twin Cities Mechanical & Electrical Inc. v. Progress Homes Inc.:

In establishing the cause of the delay, it is not simply a matter of calling an individual such as Heber Bowering [the expert], in the guise of an expert, to verify the position maintained by Progress Homes. A foundation in fact must be established to support the proposition of an almost four-month delay.^vi

1.2Impartiality, independence, and neutrality

One of the most challenging balancing acts for a delay expert is giving an opinion on causation without straying into the decisions maker’s role. No judge or arbitrator looks favourably on an expert that purports to make determinations that are reserved solely for the trier of fact. In Schindler v. Walsh,^vii for example, the court found that the expert had done just that and gave very limited weight to the expert’s opinions as a result:

Firstly, the CPM schedule delay assessment hinges entirely on a contractual analysis of the subcontract terms, leading Mr. Stynchcomb (and Mr. Stevens) to conclude that Schindler had a 129-day duration to complete installation of the Freight Elevators. Mr. Stynchcomb is not a lawyer and was not qualified to give opinion evidence on legal interpretation of construction contracts, yet opined on the very contractual analysis that must be determined by the court in these actions.

Working closely with the experts is necessary to ensure that experts understand from the legal team what assumptions they may make, and what facts and issues are agreed or contested. For example, if the parties dispute the occurrence or nature of a certain event alleged to have happened and caused delay, it may be prudent to instruct the expert to assess delay as if the event happened, and alternatively if it did not happen. Ultimately, disputed facts are for a judge or arbitrator to decide, and experts should avoid drawing conclusions about what happened or did not happen on site, absent agreement between the parties.

If alternative analyses are not desirable or possible, lawyers should direct experts to proceed with their analysis based on specific “assumptions,” and for the expert to clearly state in his or her report what assumptions they have made and how their assumptions influence their analysis. Setting out assumptions of fact is necessary to avoid the undesirable impression that the expert is deciding issues of fact for the judge or arbitrator.

Lawyers should also caution experts against making conclusions as to entitlement of one party or another – that is the exclusive domain of the decision maker. Rather, a delay expert’s opinion on critical delay should be restricted to identifying the number of days of delay caused by any particular event or issue. The decision maker will determine which party is ultimately legally responsible for that event or issue.

Close collaboration between lawyer and expert helps ensure that experts remain objective and impartial, as lawyers can reinforce the importance of independence and neutrality. Experts who appear impartial, yet informed, increase their credibility significantly.

A convincing schedule delay expert report is also one that is balanced and objective. An expert that overstates a case, or employs an advocate’s tone, will do harm to his or her credibility that will be difficult to rehabilitate. Thus, a report written in an impartial tone, based on an analysis that recognizes nuance, tends to be more effective because it helps to temper allegations that an expert is acting on behalf of his or her client. This means that experts should be prepared to address “bad facts” head on and concede troublesome points, with appropriate explanations, if possible.

Open communication with experts will also help to avoid misunderstandings down the road. This might include ensuring everyone understands or interprets terms of a contract the same way, and technical language in the report is properly explained in plain language.

Close interaction between the legal team and a delay expert helps to ensure the expert’s analysis and testimony comply with procedural rules, evidentiary standards, and jurisdiction-specific requirements, preventing challenges or exclusion at trial or arbitration. Such procedural compliance and respect for evidentiary standards will also boost the credibility of the expert and his or her analysis.

1.3 Compelling Story Telling

Delay analysis of complex construction projects can be dense and highly technical, making them difficult to understand for the uninitiated. On its own, forensic delay analysis does not make for a compelling story, and one of the legal team’s most important jobs in any delay case is translating the analysis into an understandable and persuasive narrative.

Delay claims are almost always most effectively presented as a chronology of events that the decision maker can follow. Because delays are deviations from the plan, it is typically necessary to first explain the original plan for building the project, including the as-planned critical path. Once the plan is established, key delay events can be presented chronologically as plot points in narrative format, with explanations of how each event influenced the plan integrated into the story.

Experts can further assist the legal team in preparing a persuasive story by preparing graphics and visual aids to demonstrate the schedule impacts that the narrative describes. Such graphics can be powerful tools for communicating important aspects of a delay analysis. Well-designed graphics convey complex schedule impacts at a glance and lend credibility to both the narrative and the expert.

Compelling story telling means explicitly making the connections between cause and effect that you want the decision maker to take away, rather than leaving it to be inferred. A forensic delay analysis that relies too heavily on schedules may be effective at showing the impact of alleged delay events, but proving the causes is just as important. For example, a well written expert report will explain that event X caused activity Y to be late, with a footnote or reference to a document that provides evidence of event X. So, if the late delivery of windows delayed window installation in a new home build, the expert should say so, with reference to the document evidencing the material receipt date. The more an analysis is backed up by documentary evidence, the more credible it will be.

Story telling in the delay expert’s report should never rise to the point of advocacy. In Schindler v. Walsh,^viii the Court criticized a style of storytelling that used exaggerations and blurred the line between the experts and the parties:

However, on the totality of the report and Mr. Stynchcomb’s testimony, I do not agree that his findings, opinions, and conclusions on Schindler's lack of critical path impact on the WCH Project are truly non-partisan and unbiased. In my view, Mr. Stynchcomb did not remain within the role of an independent expert. He failed to remain impartial and instead assumed the role of an advocate for Schindler. This is most stark in the expert report itself. Throughout the report, the authors appear to identify their views and opinions as being those of Schindler, rather than their own. In many places, the report reads more like a factum supporting Schindler’s case than the report of independent, unbiased experts. There are many examples. At points, the authors employ a story-telling style utilizing hyperbole in their conclusions (e.g., stating, “This defective WBP activity resulted in substantial elevator alignment delays to Schindler's crews”, without explaining how “at least 6 working days” of delay constitutes “substantial” and asserting that the twisted hoistway caused “further delay and losses of productivity” without substantiation). The authors comment on what was “reasonably anticipated” by Schindler without explanation. They observe that reasons are “unbeknownst to Schindler” and, at one point, conclude that work of other trades “took significantly longer than reasonably expected and experienced by Schindler on other like projects”, seeming to be an unreserved acceptance of Schindler’s views on reasonableness. The apparent identification with Schindler has significantly impacted the weight I have given Mr. Stynchcomb’s opinion on whether Schindler’s delays caused any critical path delay.

1.4 Preparing for the Hearing

Lawyers should work closely with schedule delay experts to help prepare the expert to present their analysis and be cross examined. Even the most seasoned testifying experts benefit from hearing preparation.

For direct presentations, lawyers should help experts distill their often lengthy and dense reports into highlights of the most important points. Shorter presentations tend to be more easily digestible and understandable. In their direct presentations, experts should strive to be teachers, rather than lecturers, paying attention to the demeanor and reactions of the judge or tribunal and engaging directly with them to ensure that they are following along. Plain language tends to improve credibility, while technical jargon can often create a sense of trying to mask or obfuscate issues.

Demeanor and responsiveness are two of the most important factors that will influence an expert’s credibility during cross examination. Mock cross examinations, prior to trial or arbitration, can be an effective way to help an expert practice maintaining a non-combative demeanor, and a forthright attitude in responding to challenging questions, as being evasive and defensive can be fatal to an expert’s credibility. Mock cross examinations also provide an opportunity for experts to practice how to respond in a measured way to reasonable but detrimental points made by the examining lawyer.

Finally, during cross examination, delay experts should strive to “stay in their lane,” and not offer opinions in areas outside of their scope. That typically means not drawing legal conclusions or opining on contractual interpretation points, for example. It also means acknowledging where questions touch issues that are outside of the expert’s scope or knowledge, and being prepared to say “I don’t know”.

Ultimately, the most persuasive delay evidence is rarely the product of an expert working in isolation; it is the product of disciplined, principled collaboration between counsel and the expert from day one through the hearing. As this article has emphasized, that collaboration begins with complete and transparent information sharing, continues with safeguarding impartiality and independence, and succeeds only when the technical analysis is translated into a clear, credible narrative that the trier of fact can follow. Finally, even the strongest analysis must be delivered effectively, through careful preparation for direct testimony and the realities of cross-examination. When lawyers and delay experts strike the right balance between support and independence, they not only strengthen the quality of the opinion evidence, but also enhance its clarity, fairness, and ultimately its persuasive force.

Michael Valo is Partner at Glaholt & Bowles in Toronto, Canada and can be contacted at michaelvalo@glaholt.com