The Importance Of Engaging Design Professional Experts Early, With A Focus On Massachusetts Law

Jay S. Gregory | Gordon Rees Scully Mansukhani

In any Massachusetts case alleging negligence against a design professional, an expert witness on the topic of liability is a critical, early consideration. Given the expense of expert witnesses, counsel representing design professionals are wise to evaluate (1) the need for an expert, (2) the timing of the engagement of an expert, and (3) the scope of the expert’s services.

To begin, not every allegation of negligence against a design professional necessitates an expert opinion. “The test for determining whether a particular a particular matter is a proper one for expert testimony is whether the testimony will assist the jury in understanding issues of fact beyond their common experience.” Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Co., 439 Mass. 387, 402 (2003) (addressing duties of an insurer). For instance, in its ruling in Parent v. Stone & Webster Engineering Corp., the Massachusetts Supreme Court noted no expert would be necessary to prove professional negligence where an electrician was injured by a mislabeled distribution box carrying 2,300 volts. 408 Mass. 108 (1990). It is reasonable to expect lay jurors to comprehend the duty of an electrician to properly label a distribution box carrying potentially fatal quantities of voltage. To the extent liability is readily recognizable to the average juror (i.e. “within the ken of the average juror”), significant cost savings are achievable by forgoing the use of an expert witness. That, however, is the exception.

Far more often the duty of care is more nuanced, and an expert is required to prove liability. For instance, “[a]rchitects, like other professionals, do not have a duty to be perfect in their work, but rather are expected to exercise ‘that skill and judgment which can be reasonably expected from similarly situated professionals’ . . . Expert testimony is generally needed to establish this professional standard of care.” LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 329 (2012). While contracts for architects, engineers, surveyors and other design professionals often expressly set forth their duties, those contractual terms are not typically sufficient to establish liability against the design professional. More explanation is required to educate the average juror on duties (written and/or implied) of design professionals.

Furthermore, design professional deviations from the common practices of the profession do not always constitute negligence. Design creativity can be “stifled” and progress in the fields of engineering and architecture could be halted if “untried configurations” subjected the practitioners to liability. Klein v. Catalano, 386 Mass. 701, 717 (1982).

Once there is a determination that an expert is necessary legal counsel ought to engage such services early. The early involvement of an expert can assist the attorney in analysis of discovery, preparation for depositions, evaluating exposure, and mediating. Tempting as it may be to delay the procurement of an expert until the point of necessity, hoping that the matter will resolve before incurring expert-related costs, it is more typically a false saving; it invites the classic conundrum of not knowing what you do not know.

That is not to say the initial engagement of an expert need be expensive. An expert can be engaged early at minimal cost. Formal written reports are not needed early in the case. Indeed, it is unadvisable to do so unless the outcome of said report is certain. An attorney experienced in defending Massachusetts design professionals can often identify liability assessments early. Even in that instance, the preparation of a formal, written opinion is typically an expensive endeavor. An informal, verbal opinion is usually sufficient for purposes of identifying available defenses (including the affirmative defenses accompanying the Answer), preparing discovery demands to other parties, responding to discovery demands and participating in mediation.

Therefore, the scope of the expert’s services is best to be left flexible. A tiered approach is often advisable. The potential of a full disclosure, suitable for purposes of Massachusetts Rule 26, must be considered. However, before that requirement is realized, an expert can be engaged on an hourly basis to review the available documents, provide insights thereon, and present a preliminary verbal opinion. Depending on counsel’s assessment of the efficiency, credibility and value of that preliminary verbal opinion, more expert services can be arranged.

Of course, an expert’s opinion (be it verbal or written) can never eclipse the role of the juror. Attorneys must be keenly observant of this foundational truth of the practice of law – an expert is merely a component of the case; it cannot be the end-all-be-all. “The role of an expert witness is to help the jury understand issues of fact beyond their common experience. Under modern standards, expert testimony on matters within the witness’s field of expertise is admissible whenever it will aid the jury in reaching a decision, even if the expert’s opinion touches on the ultimate issues that the jury must decide. [citation omitted] An expert may not, however, offer his opinion on issues that the jury are equally competent to assess.” Simon v. Solomon, 385 Mass. 91, 105 (1982). Moreover, the ability of an opposing party to produce a contradicting expert opinion must never be discounted.

The expert is a critical component to most cases alleging negligence against design professionals in Massachusetts. That being said, the expert need not break the bank for such a case.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Address Anti-Expert Bias: 5 Ways

Dr. Ken Broda-Bahm | Holland & Hart

It has been a rough couple of years for science. Our newly-unmasked population seems to be more divided than ever about our ability to rely on science in applying systematic and neutral procedures in order to find reliable answers to the questions that matter. A sizable chunk of the population is primed to suspect that anyone who speaks with initials after their name is likely to be spreading BS.

Of course, there has always been a tendency for people in some quarters to downplay science as mere opinion. Particularly in a courtroom, there has always been the temptation to treat scientific testimony as simply a stance being taken to benefit one side in a dispute. But our years-long battle with the coronavirus has, I fear, left us with even deeper scars over our trust in science. When you are needing jurors to trust and follow the science in your case, it is worth devoting some thought to ways you might overcome what, for many, has turned into a habitual distrust of science. In this post, I will share my thoughts on five ways to temper that rejection when it comes to an expert’s scientific testimony.

  1. Downplay the Elitism

Yes, qualifications are important, and it is necessary to review those credentials as part of testimony. But the traditional way of covering credentials, which breaks down to a recitation of a curriculum vitae, can be off-putting. Instead of just listing jobs, degrees and awards, try to use direct examination to tell a story of how your expert came to know what she knows. If there are ways you can build bridges, by showing that the expert is a “Regular Joe” or “Jane” before or in addition to being an expert, then build those bridges. In particular, if there are ways your experts get their hands dirty in doing actual work, and not just sitting and thinking in those proverbial ivory towers, then emphasize that.

  1. Only Use Jargon When Necessary and After You’ve Defined It

It is a natural habit for experts, particularly in the academic fields, to distinguish themselves through their vocabulary. But big words distance, they don’t impress. When testifying, speak conversationally, as you would to those who don’t share your education. Often you need a particular concept or terminology to be understood, but when you do, explain it in common terms first and then supply a short hand label for it. For example:

Some organisms will target only specific bacteria, the way wolves might hunt deer, and when those organisms are gone, the previously hunted population will grow out of control — no wolves means too many deer. The concept here on a small scale is called ‘microbiotic instability.’

  1. Teach, Don’t Preach

I strongly believe that experts are influential in a courtroom, not so much when they can show that they are smart, authoritative, and accomplished, but when they can show that they are useful. The idea is not to hammer jurors with a conclusion that they need to accept, but to introduce them to the steps of finding, understanding, and trusting that conclusion on their own terms. The idea is to persuade through process, not just through authority. In other words, the message isn’t, “Believe me because I’ve studied this and you haven’t” but rather, “If you follow me logically through this process, then you are going to see the conclusion too, and you can trust that conclusion because you’ve gotten there as well.”

  1. Use Anecdotes and Not Just Data

I recently shared a post about the advantage for experts when they don’t just support their point, but illustrate it as well. The logical foundation may be in the data, but the communication step that makes it sticky and credible is often in the concrete illustration or anecdote. The reason that it works is that the example is often more quickly understandable than the underlying data, and is more easily related to the jurors’ experience.

  1. Compare Carefully

The goal of testimony is often for your expert to be better than the other side’s expert. In that situation, of course, you can’t ignore that expert. At the same time, you don’t want to critique the other side in ways that could reduce faith in science generally, including your science. That is why some of the “glass houses” critiques of expert’s (you work for one side, you charge for your time, methods are always uncertain, etc.) fall flat. If you can safely compliment one part of the other side’s analysis, then you might gain credibility by doing so. But also focus on any errors or omissions, particularly those that are internal to that experts own methodology and frame of reference. Ultimately, the goal is to teach jurors on the practical ways that your analysis is going to be more useful to them than the other side’s analysis.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Insurers Challenging Awards When Appraisers’ ‘Disinterest’ in Question

Claims Journal

Insurers created the appraisal process to provide an efficient way to resolve disputes outside of the courtroom using disinterested experts, but lately insurer skepticism about appraiser impartiality has become a new source of litigation.

Insurance defense attorneys are increasingly likely to challenge appraisal awards that they believe are tainted by appraisers who are not disinterested or impartial, as required by most insurance contracts.

“If an unbiased panel tells our client it owes the claim, great. Our client will pay it,” said Steve Badger, a partner with the Zelle law firm in Dallas who represented the insurer. “But if a crooked panel tells our client that it owes $56 million on a claim truly worth a tenth of that, we are fighting back. And aggressively.”

Badger represented Brotherhood Mutual Insurance Co. is a dispute with the First Baptist Church of Odessa, Texas over the value of claim resulting from a June 2017 hail storm. The insurer filed a counterclaim accusing the church of colluding with an appraiser and an umpire on the appraisal panel in an attempt to defraud it.

That was just the latest of several cases where insurers challenged repair estimates that they say were made by biased appraisers. Last month, a jury in Denver County, Colorado found that an appraiser had defrauded Travelers Indemnity Co. and awarded more than $500,000 in damages.

Badger said the appraisal process has no procedural rules or ethical guidelines.

“As a result, a small group of fraudsters have realized they can manipulate the appraisal process for the financial gain of their clients and also for themselves,” he said.

‘Untethered from reality’

The First Baptist Chuch in Odessa, Texas is shown.

Brotherhood Mutual had accused appraiser Raymond Choate and umpire Mark Weeks of being among those fraudsters in the counterclaim the insurer filed last December, after the church filed a lawsuit to recover hail damages.

Proceedings in the case, which was removed to federal court, were stayed in 2020 for the appraisal process. Both the church and the insurer designated appraisers, who mutually agreed to an umpire to resolve any differences.

But the umpire selected by the appraisers withdrew because of his heavy workload. Brotherhood alleges that this is when the church and its appraisers conspired to defraud it.

On June 15, 2020, an attorney for the church, Christopher G. Lyster, asked Judge Michael Moore, of the 29th Judicial Circuit in Palo Pinto County to appoint a replacement umpire. Moore complied the next day, appointing Mark Weeks in Wichita Falls (300 miles from Odessa). Weeks returned the $56.6 million appraisal award that Brotherhood Mutual challenged in court.

Moore’s courthouse is 269 miles from the First Baptist Church in Odessa, according to Wells resides in Wichita Falls, about 300 miles away.

According to Brotherhood Mutual’s pleadings, Choate and Weeks conspired to make misrepresentations and produce a damage estimate “untethered to reality,” knowing that the church would attempt to bind Brotherhood Mutual to it.

The insurer’s counterclaim states that the church’s own contractor submitted an estimate in 2018 that repairs of the hail damage would cost $10,660,764 and repairs to interior damage $40,708. The new $56.6 million appraisal included $38 million in interior damages, the suit says.

Brotherhood Mutual persuaded US District Court Judge David Counts to throw out the appraisal award, but not because of the fraud allegations. As it turned out, the church’s attorney had acted too soon. Judge Moore appointed a replacement umpire only 14 days after the previous umpire withdrew. Counts ruled that the policy required the church to wait 15 days before asking for a replacement umpire.

Counts granted the insurer’s motion to vacate the appraisal on Feb. 16. On Feb. 28, the parties submitted a notice of settlement for an undisclosed amount.

Badger is not allowed to discuss the settlement terms. But his point was clear.

“The days of compromising outrageous appraisal awards just to be done with the matter are over,” he said in an email.

The court never ruled on the merits of Brotherhood Mutual’s fraud arguments, but the involvement of a Palo Pinto County judge in a far-away claims dispute raised eyebrows even among policyholder attorneys. Chip Merlin, a Florida lawyer who runs a national practice representing insurance claimants, wrote about the First Baptist Church appraisal in a blog post last April.

“In some jurisdictions, writing a unilateral letter to a judge knowing that another party is represented I would suggest could be a major ethical issue,” Merlin wrote.

Lyster, Moore and Choate did not respond to requests for comment. Weeks said Monday that he did nothing wrong. He said he agreed to the appraised amount only after the insurer’s appraiser stopped participating in the process, leaving only one damage estimate in play. He said he signed documents releasing him from liability for the claim.

Good faith

Bob Horst, managing partner of the Horst Krekstein + Runyon law firm in Plymouth Meeting, Pennsylvania, outlined the inherent flaws of the appraisal process from an insurer’s perspective during a presentation at the Property Liability Resource Bureau conference in San Antonio earlier this month. He questioned whether appraisers who are paid on a contingency basis can be truly disinterested, as required by insurance contracts.

Shawn D. Woodie, a claims examiner for Erie Insurance Group, said during the presentation that appraisals, instead of settlements, are being used to resolve claims more than ever before.

Horst said the appraisal process itself is also being litigated more frequently, with multiple decisions from different jurisdictions in the last several months alone.

Some examples: In January, a US District Court judge in Miami dismissed a lawsuit filed by a homeowner who attempted to cancel an appraisal that took longer to complete than she wished and did not include the full scope of damages. In February, a US District Court Judge in Chicago ordered AmGuard Insurance Co. to participate in the appraisal process despite the insurer’s concern that its dispute with the homeowner was over whether coverage existed, not the extent of damage. In March, a US District Court judge in Tennessee compelled State Farm to appoint an appraiser to resolve a claim by a policyholder who says her historic home was damaged by a tornado.

“One issue generating attention is whether an appraiser — and/or an umpire, for that matter — is disinterested,” Horst said in an email. “Some policies and courts have also considered an appraiser’s impartiality as well. The existence of an appraiser’s contingency interest in a potential appraisal award (or loss payment) is likely one factor in an analysis of whether that appraiser is interested.”

Public adjusters generally agree that the appraisal process is being used more often than it should, said Brian Goodman, counsel for the National Association of Public Insurance Adjusters. But Goodman said there’s plenty of blame to go around.

Goodman said natural disasters are more frequent and insurers are responding by sending inexperienced out-of-state adjusters who don’t always know how to value a claim. On top of that comes a general lack of civility in society that discourages a good faith effort among the parties involved to resolve claims.

Goodman said there are two requirements for an appraiser: They must be competent and disinterested.

“If you look at the plethora of reported cases now, the notion of who/what is a disinterested appraiser is litigated all the time,” he said in an email.

Bad faith

Many cases involving alleged bias by an appraiser cite a 2019 Colorado Supreme Court decision in a lawsuit brought against Owners Insurance Co. by the Dakota Station II Condominium Association. The insurer paid the claim after an appraisal, but later challenged that appraisal because the appraiser’s contract with the insured capped her fee as a percentage of the insurance payout, Also, the appraiser had testified that it is appropriate for an appraiser to act as an advocate for the insured.

The Supreme Court did not agree that the contingent fee agreement necessarily meant the appraiser was biased, but remanded the case with directions to the trial court to determine whether the appraiser’s statement about being an advocate for her client had disqualified her.

The Supreme Court’s ruling states that appraisers must be “unbiased, disinterested, without prejudice, and unswayed by personal interest, [and] must not favor one side more than another.”

Travelers Insurance Co. banked on that Dakota Station language when it challenged an appraisal award that found $1.6 million in hail damage to policyholder GSL Group’s property.

Travelers paid the appraisal award, but later learned that the policyholder’s appraiser, Juan Cartaya, had used a fraudulent invoice to support his estimate of the extent of damages.

The insurer said Cartaya had received $603,864 bid from a contractor to repair the metal roof over GSL Group’s property, which included a $23,000 line-item estimate to repair beams, called purlins, that support the roof. But Cartaya included the entire $603,864 as the cost of purlin repairs alone and added additional line items that increased his appraisal to $1.6 million.

Travelers alleged that Cartaya had billed himself as an “advocate” for policyholders when advertising his business, located in Fort Lauderdale, Florida. He also received received numerous referrals from the Merlin Law Group — the very law firm mentioned earlier that is managed by policyholder attorney Chip Merlin. What’s more, attorneys for Merlin’s practice often provided free legal services to Cartaya’s clients.

“One is reminded of the adage that ‘there is no such thing as a free lunch,’” US District Court Senior Judge Marcia S. Krieger said in a September 2021 ruling. “Here, it is reasonable to believe that Mr. Cartaya would feel obligated to return that favor, such that he could be swayed in his appraisal activities in this case by that personal interest.”

Krieger found that the evidence showed Cartaya has submitted a “grossly overinflated estimate” of the damage to the GSL Group property and that he was not impartial as required by the policy. She vacated the appraisal award, but also denied Travelers request to recoup $805,054 that the insurer said it had overpaid.

Travelers filed a separate lawsuit against Cartaya in Denver County Circuit Court. The case was tried and on March 29 a jury returned a civil verdict finding that Cartaya had committed fraud. The jury found that Travelers’ damages were $603,864, but 10% of that amount was the fault of the insurer’s appraiser, Trent Gillette.

“Sadly, these abuses are ruining a process that was intended to help policyholders promptly resolve disputed claims without the need for litigation,” Badger said. “To the contrary, the current schemes are ensuring these disputes end up in years of litigation.”

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Distinguish the Four Types or Phases of Witness Preparation

Dr. Ken Broda-Bahm | Holland & Hart

Experienced trial lawyers know it is important that their witnesses are prepared to testify. At the deposition stage, and even when the likelihood of a trial is uncertain, it is critical to invest the time in making sure that the important witnesses know what to expect and are ready to go on record clearly and effectively, because the quality of the testimony can have a strong influence on case disposition and settlement value. But preparing a witness is not one step, it is many. Instead of focusing on the single goal of, “Let’s get ready to testify,” it helps to be a little more precise about what we are preparing and when.

Goals can overlap, and often the same witness will move unevenly through the various stages and functions of witness preparation. But, broadly, I see four distinct phases of witness preparation, and the focus and goals within each can be quite different. Often, it makes sense to separate these phases into distinct meetings, or at least distinct parts of a larger meeting. And even as you might jump between different goals, there is a benefit in knowing where you are at any given moment. In this post, I will outline the distinctions I see in the four types or phases of witness preparation.


The first question is, “What is the witness going to say?” Early on in the case, this question will cover the basics, but as the case matures, it will expand to what the witness will say on each of the documents and on each of the more detailed lines of questioning that you expect. You find out what your witness will say by asking them first. The goal is to find out what they know, how they know it, and how firm they are on it. Obviously, the goal is to get at the truth, and no ethical attorney messes with that, but there are also questions about the extent, specificity, and perspective that the witness is bringing to their recall and to their judgment. So it is often a process of working out exactly what the testimony will be, and this isn’t practice, it is a discovery and a development of the substance of the testimony.


The next question is how the witness feels about all of this. If the attorney is too pragmatic in thinking that feelings don’t matter, that could be a mistake. Even in cases that are not clearly driven by emotions, it does take some experience and perspective to deal with being in the hot seat, dealing with pressure of hostile questioning, and at times, dealing with the force of accusation attached to the claims or the defenses. Unless your witness is an experienced expert witness, they are not used to this. They have concerns, questions, and fears. Ask about those. Witnesses often need to be reassured that they will be able to get through it and fulfill their role in the case. They want to know that they will be okay. The certainty, confidence, and credibility that they express in the witness chair is going to be a product of that comfort.


Whether the witness has never testified, or whether they’ve testified a few times, they will need a course or a refresher on what to expect. When will they testify? How long will it last? What is opposing counsel’s style? And, most importantly, what kinds of questions will they be asked? That process of setting expectations and filling in the knowledge gaps can also help give the witness that critical sense of control that translates into greater comfort and credibility. The education should also extend to the opposing counsel’s goals: What story are they trying to tell, and how does the witness fit into that story? Finally, it is important for the witness to know about the full bag of tricks that opposing counsel will have at their disposal — leading questions, built-in assumptions, planted language, control over pace, etc. — and the ways to deal with each.


Ideally the final stage occurs after the other three phases have been mostly addressed: We know what the witness plans to say on all important questions, and their psychological comfort and their practical knowledge on the process have both been addressed. Now it is time to move into mock Q & A while trying to stay “in character” by keeping the manner and the matter of the testimony as realistic as possible. Walking through the expected themes and topics of cross-examination, or for trial, the direct-examination outline as well, is the ultimate test on how the witness will do. If problems crop up at this stage, it can mean retreating temporarily to one of the other three goals. Ultimately, however, the mission is to take the training wheels off by engaging in longer and longer stretches of testimony without breaking to correct anything.

Ultimately, jurors’ decisions in the case are their reaction to the cumulative testimony. Every moment during that presentation of evidence is a chance to reinforce your story. A well-prepared witness — solid on all four of the bases — is a critical asset.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Tips On The Use Of Experts In Insurance Coverage Litigation

Huiyi Chen | Jenner & Block

The use of experts in coverage litigation shares a lot of commonalities with that in other types of litigation, but also has its own unique issues of which practitioners need to be mindful.

Unlike most specialized areas of litigation, insurance coverage litigation often encounters the use of experts in a vast variety of substantive areas—different first-party insurance policies may require expertise about different types of causation and losses, and the subject matter of third-party coverage disputes often depends on the issues in the underlying litigation, which could vary from medical malpractice to chemical pollution. The author recently spoke at an ABA panel* on how to navigate the thorny issues in the use of experts in insurance coverage litigation and has a few practical tips to offer.

  • Maintain due diligence throughout the expert engagement. The first thing counsel wants to avoid is the opposing party finding materials your experts published in the past that directly contradict their opinions offered on your client’s behalf –they can then use those materials in deposition or cross-examination at trial. Sometimes there aren’t a lot of candidates in a particular area of expertise and litigators may not have much latitude in picking an expert (especially when insurers/reinsurers in different layers want to engage different experts instead of sharing the same ones). Other times, there is a strategic advantage to engage an expert first so that your opponent cannot. Even under such circumstances, due diligence on the expert’s past publications and reputation is critical so that you are at least aware of any potential weaknesses and inconsistencies and can try to navigate around them. Due diligence is not a one-off practice before you engage an expert; instead, it should be a continuous effort throughout the litigation. This is especially important considering the prevalent use of social media nowadays and because experts tend to be active speakers and writers.
  • Consider using experts in a privileged capacity. Not all experts need to testify. There may be benefits in having two separate sets of experts looking at the same issues or data sets early in the case to “test the waters.” Experts can also be helpful in the context of mediation and settlement negotiations. Be mindful, however, that the law in your jurisdiction regarding privilege protection over non-testifying experts might be stricter than Federal Rule of Civil Procedure 26(b)(4)(D), and you might end up having to disclose what you presumed to be privileged and confidential. Experts engaged at the claims adjustment stage (even in anticipation of litigation) might work on compilation of facts or data that a court later may find to be non-privileged. It is good practice to ascertain the parameters of non-testifying expert privilege protection in your jurisdiction to inform your decision of expert engagement and communications.
  • Avoid exclusion of your experts. Timely and adequate disclosure of expert opinions and the bases of the opinions is essential to maintain your expert’s ability to testify at trial. A recent Fifth Circuit decision upheld the trial court’s decision to strike an insurer’s causation expert’s reports and deposition because the initial report was “preliminary,” contained “no real opinions,” and lacked “a complete analysis or findings section,” and because the expert untimely submitted a supplemental report on the day of the close of discovery. AIG Eur., Ltd. v. Caterpillar, Inc., 831 F. App’x 111, 115 (5th Cir. 2020). Another common pitfall that can lead to expert exclusion is using experts to testify to the ultimate question of law or the meaning of the policy terms at issue. Contract interpretation is usually a question of law for the court, but insurance policies often contain specialized terms that have a definite meaning in the custom and practice of the insurance industry or some other specialized discipline, and they may warrant expert testimony. Carefully drawing a line between the two is critical in preserving expert testimony related to the meaning of policy terms.

In sum, the use of experts in coverage litigation shares a lot of commonalities with that in other types of litigation, but it also has its own unique issues of which practitioners need to be mindful.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email