On January 20, 2026 the Supreme Court decided Berk v. Choy, holding unanimously that a state affidavit-of-merit requirement does not apply in federal diversity cases, because Federal Rule of Civil Procedure 8 governs what a plaintiff must supply at the outset.
More than half the states impose some form of certificate or affidavit of merit in professional negligence cases. The Expert Institute's survey counts roughly 21 states plus the District of Columbia with no formal statutory requirement. So for a large share of medical malpractice and professional liability practice, a real screening gate just moved.
It is worth being precise about which gate.
What moved
The forum question. Where a state affidavit requirement previously operated as a hard front-end filter on filing, the federal option now runs on Rule 8's standard instead. For firms practising in affidavit states, forum selection has become a decision with different consequences than it had in 2025, and one that is worth documenting per case rather than applying as a habit.
That is a meaningful change to strategy. It is not a change to the merits, and it is emphatically not a reduction in what a case requires.
What did not move
An affidavit of merit was never the reason a case was viable. It was a procedural attestation that the underlying work had been done.
The underlying work is unchanged. A professional negligence case still needs a complete record, a defensible chronology, an identified standard of care, a documented deviation, and an expert willing to attach their name to an opinion about it. Berk does not supply any of those. It changes when a court first asks you to demonstrate that you have them.
There is a version of this decision that gets read as a loosening — file first, develop later. Firms that read it that way will discover the same thing in discovery that they would previously have discovered at the affidavit stage, except later, with more sunk cost, and in front of a defendant who now has the file.
The screening economics are the real story
The thing that actually determines how selective a med-mal practice can afford to be is what it costs to screen a case, and expert review is the expensive component.
The mechanism is straightforward. When an expert receives a box of records, expert hours go to reconstructing the record — ordering it, deduplicating it, working out what happened when. When an expert receives a package — complete records, a chronology with source-page citations for every entry, and a timeline of alleged deviations — those hours go to the medicine.
The medicine is the only part you are actually buying. Everything else is the expert performing document assembly at expert rates.
Firms that standardise the screening package see the cost per screened case fall enough to change their acceptance threshold, which is a strategic outcome rather than an operational one. You can afford to look seriously at cases you previously had to decline on cost.
Splitting the screen by skill
The screening package decomposes cleanly, and the decomposition is where the leverage is:
Assembly — retrieving the complete record, splitting and attributing it, building the chronology with a citation on every entry. High volume, mechanical, gates everything, and requires no clinical judgment.
Clinical layer — reading the assembled chronology against the standard of care and marking deviations. This is where a nurse paralegal's training is worth what it costs.
Legal theory — causation, damages, forum, and whether this is a case. Attorney.
In most practices these three collapse into one person doing all of them sequentially, which means the clinical judgment waits on the page-turning and the legal judgment waits on both. The queue is the constraint, not the skill.
Practical consequences
Three things worth doing in the wake of the decision, none of which are about the decision itself:
Document the forum choice per case. The affidavit calculus now differs between state and federal court in a way it did not, and "we always file in state court" is no longer a strategy, it is a leftover.
Standardise what goes to an expert. Same format, same citation convention, every time. The variance in expert cost across a portfolio is mostly variance in package quality.
Measure cost per screened case, not per signed case. Berk changed when you have to prove your work. It did not change that the work is the expensive part, and the declined cases are where that expense concentrates.
Field notes
Four of thirty scenarios in this series. All are composites, built from patterns we see repeatedly rather than from single named engagements. Firm details are illustrative.
20 · Rebuilding screening after Berk
Medical malpractice · solo practitioner · review owned by her nurse paralegal
She screened potential cases herself, reading records at night and sending promising files to an expert. Expert review is expensive, so a bad screen costs real money, and her nurse paralegal was the only other person who touched the medicine.
What changed. The screening package was standardised — complete records, a chronology with source-page citations, a timeline of alleged standard-of-care deviations, assembled the same way every time. Assembly happened on the pipeline; the nurse paralegal applied the clinical layer; the attorney reviewed the legal theory. The forum question was tracked per case as a documented decision rather than a habit, since the affidavit calculus now differs between state and federal court.
Outcome. Screening got faster and cheaper per case, and she stopped reading raw records at 11 p.m. to decide whether a case was worth an expert's time. Attorney contact: two a week, plus a call before any expert retention.
21 · Six experts on one case
Product liability · solo practitioner · review owned by the litigation paralegal
A single product case carried an engineer, a human factors specialist, an economist, a life care planner, an accident reconstructionist and two treating physicians. Coordination consumed more of the attorney's week than the legal theory did.
What changed. Expert coordination is not legal work but it gates every deadline in the case, and when it lives in an attorney's head instead of a system, disclosure deadlines become fire drills and expert budgets overrun quietly. An expert matrix per case captured scope, retainer status, required inputs, deliverable, deadline and budget to date. One exhibit source of truth meant every expert worked from the same numbered set. The litigation paralegal approved what went to each expert.
Outcome. Disclosure deadlines became scheduled deliverables, and his preparation time went to theory and cross-examination rather than to chasing invoices and calendars.
22 · The solo who tested one function first
Medical malpractice · solo practitioner · review owned by her paralegal of eleven years
She had deliberately avoided outside support for years over confidentiality, quality control, and the fear of losing the personal service her clients valued. She was doing everything herself and declining referrals she had no capacity to take.
What changed. Nothing, at first. One lower-risk function — records retrieval — on three files, so quality could be judged on evidence rather than on a pitch. The confidentiality and access controls were walked through with her paralegal, not just with her, because her paralegal would be the one supervising. A 30-day evaluation window had explicit checkpoints that the paralegal controlled and could fail us on. Retrieval first, then chronologies, then broader case documentation, each stage added only after the prior one held.
Outcome. She runs a substantially larger caseload now, and credits the phased rollout rather than anything anyone told her at the start. The real risk was never the support model. It was the compounding cost of declining cases indefinitely to protect quality single-handedly.
23 · The probate solo who could not take a week off
Trusts, estates and probate · solo practitioner · review owned by the office manager · deployed with Specter review
She had not taken more than three consecutive days off in two years. Every inventory, every accounting, every notice and every heir call ran through her office manager, and every judgment call ran through her. There was no third person.
What changed. A two-week knowledge transfer came before any live file was touched. Work split explicitly: inventory schedules, notice lists, court form preparation and accounting drafts prepared, office manager reviews, attorney signs. An attorney-unavailable protocol gave the office manager triage authority so an absence did not stop the practice. Ad hoc interruption was replaced with one structured weekly sync, which cut her context switching more than any single delegation did.
Outcome. She took her first full week off in over two years, three months in, with zero client escalations. The office manager gained backup instead of remaining the only single point of failure in the practice.