Tales from the Courtroom: Marc Fischer’s Lessons for Property Professionals (BOMA 2025 Preview)

No one wants to end up in court defending their property management practices—but it can happen. Marc Fischer, BOMA Fellow and head honcho at INSPIRE, has seen it time and time again. Fischer’s 30-plus years of hands-on experience and thought leadership in commercial real estate have made him a skilled expert witness who is called on to share his CRE knowledge in real estate litigation cases.

On Sunday, June 29, he’ll share some of his experiences in his session, “Tales from the Courtroom—Lessons Learned as an Expert Witness.” This session will draw on real legal disputes to give attendees a new perspective on how to navigate—and avoid—legal challenges.

What is an Expert Witness?

There are two types of witnesses who can testify, Fischer explained. The first type is a fact witness. A fact witness was involved with the event that the case is about—for example, someone who witnessed a slip and fall incident at a property during a snowstorm.

The other type is an expert witness. An expert witness was not directly involved, but is there to give important context, explain complicated concepts, and render an expert opinion based on their experience. “Although I might be hired by the plaintiff or the defense, ultimately my job is to just tell the truth,” Fischer explained. “My integrity is really important. I only take the cases I believe in, and I only argue the points I believe in. When I write a report or testify in court or a deposition, I’m 100% comfortable that I am testifying about established property management standards and practices.”

Expert witnesses apply what’s known as the “reasonable person standard” when giving their opinion, Fischer added: What would a reasonable person do in a similar situation given the standard of care? The standard of care is a combination of different practices that the industry has agreed on to say what property managers should do in a given situation. For example, it’s generally accepted that if a storm is coming, a property manager should put out wet floor signs, a walk-off mat, and umbrella holders, as well as engage their day porter to make sure someone is mopping up wet floors in the lobby reasonably quickly. The standard of care also incorporates laws, regulations, and industry codes and standards, such as BOMA International’s floor measurement standard.

The reasonable person standard also explores whether a given consequence was foreseeable, Fischer said. “Could the property manager have foreseen that this thing could have happened?” he said. “Some things are unforeseeable.”

4 Tips for Property Professionals

Fischer’s presentation will include lessons drawn from real-life case studies. Insights gained from litigated cases will help attendees evaluate the way they manage their own risk in CRE now.

“When you’re the property manager and you’re being called out on the standard of care and you’re personally cross-examined about your specific behavior, it’s worse than getting a root canal,” Fischer said. “The idea is that we want to keep you from having to go to the courtroom and be on the witness stand.”

Fischer’s presentation will arm property professionals with best practices, such as:

1. Build layers of protection. Think of your risk management program as layers of protection. In terms of security, for example, you might combine access control systems, security cameras, roving security guard patrols, good site lighting, and other deterrents. The multi-layered approach makes it more difficult for someone to do harm at the property because, even if one system fails, there are multiple overlapping layers that remain in place.

2. Document, document, document. Keep records even if you don’t think you’ll need them. In the case of snow removal, every time a storm comes, you can open up a work ticket for the storm and document related activities.

“When you put the wet floor sign out, note that in the work ticket, take a picture of it, and attach it,” Fischer advised. “When you put the floor mat out, note that in the work ticket, take a picture of it, and attach it. Throughout the storm, take pictures of the sidewalks, the grounds, and the front entrances. When you upload photos or videos from your phone, they include date/time stamps and GPS location. This information can be incredibly powerful to show the actual conditions on-site. Scan your snow removal vendor’s documentation and stick it in there, too. Get all that data in one place, so if there’s a slip and fall down the road, you have everything in one place that’s easily defensible.”

3. Don’t stop learning. “Designations like BOMI’s RPA, FMA, and SMA provide CRE professionals with extensive training,” Fischer said. “Don’t ever stop learning, even if you have all of the possible designations. Go to the BOMA conferences. Take webinars. Take training classes. There’s so much out there, and property managers are supposed to be so many things for so many people.”

4. Think—don’t just pencil-whip. “Don’t just click the buttons on a report or close out a work ticket. Think about what you are doing. Ask yourself, ‘Does it make sense?’” Fischer said. For example, when performing a property inspection, don’t just go through the motions. Instead, have a critical eye to look for potential problems before they occur.

“The theme [of the presentation] is that it could happen to you,” Fischer added. “We want to prevent the incident from happening in the first place, and in the event that it does happen, we want you to have the documentation and other aspects you can use to defend your position.”

Don’t worry, there’s still time to register for the 2025 BOMA International Conference & Expo. Sign up today and save your space!