For a design professional, one of the most valuable defenses in a malpractice suit is procedural, and it operates before the merits are ever argued. A certificate of merit statute requires a plaintiff alleging professional negligence against an architect or engineer to file, at or near the outset of the case, a sworn affidavit from a licensed professional in the same field attesting that the claim has a factual and technical basis. The document must identify each theory of recovery, describe the alleged error or omission, and state the factual grounds for the assertion. Twelve states impose this threshold — Arizona, California, Colorado, Georgia, Maryland, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, South Carolina, and Texas — and where a plaintiff fails to file, the consequence is dismissal, sometimes with prejudice.
The purpose is to screen out claims that a qualified peer would not support before a firm absorbs the cost of full-blown defense. In practice, the certificate is a gatekeeper against the reflexive naming of every party on a project. A homeowner’s lawyer who must first secure a licensed engineer’s sworn opinion thinks differently about suing the geotechnical consultant than one who can simply file and see what discovery turns up. For A&E firms and their professional liability carriers, that early filter has long meant fewer meritless suits reaching the expensive stages of litigation, and a measure of leverage in the ones that do.
That leverage narrowed in 2026. In Berk v. Choy, the United States Supreme Court held that state affidavit-of-merit requirements do not apply in federal court, where the Federal Rules of Civil Procedure govern pleading. The case arose in the medical context, but its reasoning reaches every licensed profession whose home state conditions suit on an expert certificate — architects and engineers squarely among them. In federal court, a plaintiff pleads under the notice-pleading standard of the federal rules, not the heightened threshold a state legislature wrote. The early expert affidavit that many states require may no longer stand between a thin complaint and the start of discovery.
The practical effect is a matter of forum. A design-malpractice claim filed in, or removed to, federal court now advances on the federal pleading standard, and the certificate-of-merit defense that would have been available in state court does not travel with the case. For defendants, that reframes a familiar tactical instinct. Removal to federal court has often been the reflexive move for an out-of-state defendant seeking a perceived home-court neutrality; after Berk v. Choy, removal can forfeit a procedural defense that a state forum would have preserved. The choice of forum is no longer a matter of atmospherics alone — it can determine whether a weak claim is screened at the threshold or survives to impose defense costs regardless of outcome.
The jurisdictional map complicates this further for firms that practice across state lines. Tennessee is not among the twelve certificate-of-merit states, and a firm headquartered in Knoxville or Oak Ridge may find its projects, its contracts, and its litigation scattered across states that treat the threshold very differently. A single multi-state practice can face a claim governed by Georgia’s certificate requirement, another with no such screen, and a third pulled into federal court where the screen no longer applies. The defense that protects a firm in one venue is absent in the next.
None of this changes the fundamentals of a sound professional liability program, but it raises the stakes on getting them right. If fewer claims are filtered out early, more will reach the phase where defense costs accrue, which puts pressure on the adequacy of limits and the structure of the retention. Contractual protections do more work when the procedural ones weaken: a well-drafted limitation-of-liability clause, a defined scope of services, and a considered choice of governing law and venue in the design contract are the levers a firm actually controls. The certificate of merit was always a backstop the legislature provided; the contract is the one the firm writes for itself.
Our four-step Strategic Process is built to align those levers before a claim tests them. Strategic Discovery maps where a firm practices and how its contracts allocate risk across jurisdictions. Risk Assessment weighs the defense-cost exposure that a weakened procedural screen implies against current limits and retentions. Solution Design coordinates E&O structure with contractual protections and venue provisions, so the two reinforce rather than duplicate each other. Ongoing Optimization keeps the program current as the case law continues to move. A certificate-of-merit statute is a defense a firm can only hope applies; a disciplined program is one it can count on.
— Ryan Mefford, President & Risk Advisor