FN9. For the purposes of this discussion, we accept Scholz' calculation of the time the jury spent deliberating its verdict.FN10. The
jury's questions, and the court's answers, were as follows:
Question No. 1, if neither breached, are damages awarded?
[Answer:] No.
[Question No. 2:] Verdict sheet uses the words,
quote, "only if," unquote, in question three. I assume this precludes us from awarding damages or from awarding damage, one, if both breach.
[Answer:] If both breach, no damages. If
neither breach, no damages.
[Question No. 3:] If one did, do we only take account from one side?
[Answer:] As I said, you would only consider the claim of the nonbreaching party, but your
judgment on that claim has to be based on all the evidence that has been introduced. (Day 15, page 104).
We remain unswayed. Scholz' reliance on Kearns is misplaced. There, the court explicitly
required that the brief deliberation be paired with a verdict contrary to the weight of the evidence, noting that " '[i]f the evidence is sufficient to support the verdict, the length of time the jury deliberates
is immaterial.' " Kearns, 863 F.2d at 182 (quoting Marx v. Hartford Accident and Indemnity Co., 321 F.2d 70, 71 (5th Cir.1963)). We have already determined that, here, there was evidence sufficient to
support the verdict. Therefore, Scholz is merely left with a complaint that the jury should have deliberated longer. His complaint is easily defeated, as "no rule requires a jury to deliberate for any set
length of time." United States v. PenagaricanoSoler, 911 F.2d 833, 846 n. 15 (1st Cir.1990); see United States v. Brotherton, 427 F.2d 1286, 1289 (8th Cir.1970). Indeed, we have previously upheld
a verdict on thirtytwo counts which was reached in four hours, following a trial that lasted five weeks, incorporating more than fifty witnesses and hundreds of exhibits. PenagaricanoSoler, 911 F.2d at 846; see
also United States v. Anderson, 561 F.2d 1301, 1303 (9th Cir.) (holding that jury's brief deliberation does not indicate it did not give full and impartial consideration to the evidence), cert. denied, 434 U.S.
943, 98 S.Ct. 438, 54 L.Ed.2d 304 (1977); Brotherton, 427 F.2d at 1289 (finding that jury deliberation of five to seven minutes did not demonstrate that jury did not consider court's instructions before reaching
verdict).
We also refuse to read a determination to award Ahern a set amount of money from the jury's questions, which simply clarified where it could award damages, and whose evidence it should
consider. Cf. Clark v. Moran, 942 F.2d 24, 32 (1st Cir.1991) (refusing to impute reasonable doubt of guilt or of witnesses' credibility from fact that jury deliberation was lengthy or from questions asked).
Finally, we note that the jury's task was relatively simple. Although it heard complex testimony and was asked to weigh detailed evidence, the district court had already dismissed as a matter of law all the claims
except for the respective contract claims, and the sums at issue had been clearly defined in the evidence and closing arguments.
ENGEL'S TESTIMONY AT TRIAL
As noted above, Engel, Scholz' lead
counsel, was called by both parties as a witness. Maintaining that Ahern called Engel as an expert witness, instead of a percipient witness, Scholz now argues that the district court committed prejudicial error
by, first, permitting Ahern to do so, and second, by refusing to allow followup questioning by Engel's cocounsel, Passin. [FN11]
FN11. Scholz also argues that, since Engel's testimony was "highly
prejudicial" to Scholz, its improper admission is grounds for a new trial, citing Conway v. Chemical Leaman Tank Lines, Inc., 687 F.2d 108 (5th Cir.1982) (upholding district court's grant of motion for new trial on
grounds of unfair surprise due to testimony from surprise expert witness). Since we find that the testimony was not in fact highly prejudicial to Scholz, this sparsely drawn alternative argument fails.
Our
examination of each of Scholz' contentions follows the same legal framework. In each analysis, two questions face us: first, whether the district court erred in admitting or refusing the testimony or
motion; and second, whether that error was harmful. See Doty v. Sewall, 908 F.2d 1053, 1057 (1st Cir.1990). Only if we answer both questions in the positive will Scholz' argument on appeal prevail.
A trial court's error in an evidentiary ruling only rises to the level of harmful error if a party's substantial right is affected. See 28 U.S.C. s 2111; Fed.R.Evid. 103(a); Lubanski v.
Coleco Indus., Inc., 929 F.2d 42, 46 (1st Cir.1991). "In determining whether an error affected a party's substantial right, '[t]he central question is whether this court can say with fair assurance ... that
the judgment was not substantially swayed by the error.' " Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 9 (1st Cir.1994) (quoting Lubanski, 929 F.2d at 46 (internal quotations omitted)). Factors we
must consider in determining whether substantial rights are implicated include both the centrality of the evidence and the prejudicial effect of its exclusion or inclusion. Lubanski, 929 F.2d at 46. We weigh
these factors in " 'the context of the case as gleaned from the record as a whole.' " Id. (quoting Vincent v. Louis Marx & Co., 874 F.2d 36, 41 (1st Cir.1989)). We have repeatedly noted that
"no substantial right of the party is affected where the evidence omitted was cumulative as to other admitted evidence." Doty, 908 F.2d at 1057. Should a reviewing court be in "grave
doubt" as to the likely effect an error had on the verdict, the error must be treated as if it had in fact affected the verdict. O'Neal v. McAninch, 513 U.S. 432, , 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995)
(noting that "by 'grave doubt' we mean that, in the judge's mind, the matter is so evenly balanced as he feels himself in virtual equipoise as to the harmlessness of the error.").
We note that
under Federal Rule of Evidence 103(a), we review the decision not only to determine whether a substantial right of the party is affected, but also to see whether a timely objection "appears of record, stating the
specific ground of objection, if the specific ground was not apparent from the context." Fed.R.Evid. 103(a)(1); see Bonilla v. Yamaha Motors Corp., 955 F.2d 150, 153 (1st *787 Cir.1992). Here,
Scholz' counsel objected at the time of the challenged rulings. Therefore, this element of our analysis is not at issue.
Having established the legal framework, we examine each of Scholz' contentions
in turn.
A. The Contested Testimony
Phillips, Ahern's counsel, put Engel on the stand on the seventh day of trial. The objectedto portion of his questioning sought testimony regarding the
Scholz Statement, which purported to account to Ahern for the royalties from the third album. In the Statement, Scholz deducted $1.7 million for legal fees charged by Engel's law firm, which the Statement listed
as equivalent to half of the fees charged in relation to the negotiation of the agreement with MCA and the CBS litigation. The immediate issue at trial was whether this deduction was permissible as a
"commercially reasonable recording expense" deductible from the royalties under section 5.2.1 of the FMA. Because the record is determinative of this issue, we quote it at length:
Q. Now, as
far as legal fees as recording costs are concerned, you've had some experience over the years, have you not, in reviewing the contracts of performing artists and groups in the musical field; is that right?
A. Yes.
Q. And could you give the Court and the jury some estimate of the number of contracts that you believe is an estimate that you reviewed over the period of time that you've been doing
such matters in the entertainment field?
A. Hundreds and hundreds and hundreds and more.
Q. Okay. Have you ever seen legal fees as a recording cost in any of those hundreds and hundreds of contracts?
MR. PASSIN: Your Honor, I object. He hasn't been called as an expert witness.
THE COURT: Overruled. Do you mean, are you saying that he can't answer that question?
THE WITNESS: No, your Honor, I would
THE COURT: Overruled. If you can't answer it, say you can't answer it.
THE WITNESS: I can answer it, but it's a little
awkward to call me as a witness, as an expert in my client's case.
THE COURT: Overruled. You were advised that you were going to be called, and you said that you wished to stay in this case and
your client was so advised. The objection has been made. Overruled.
MR. ENGEL: At one point we said we wished to be out of the case. I think it should be clear. At one point we
said out.
THE COURT: Overruled.
BY MR. PHILLIPS:
Q. Do you have the question in mind, Mr. Engel? In the hundreds and hundreds of contracts that you've reviewed for
performing artists such as Mr. Scholz and other groups in the music field, have you ever seen legal fees as a recording cost or expense?
A. I have never seen legal fees. You mean designated in a
contract?
Q. Yes, as a recording cost or expense.
A. No, I have never seen legal fees designated in a contract as anything, and certainly not as recording costs.
(Day 7, pages 71-73).
Scholz claims the district court erred in admitting the testimony over his counsel's objection, because Ahern's counsel was using Engel as an expert witness against his own
client. First, he points out that Engel was not designated as an expert under Federal Rule of Civil Procedure 26. See Prentiss & Carlisle Co. v. Koehring Waterous Div. of Timberjack, Inc., 972 F.2d 6
(1st Cir.1992) (upholding trial court's refusal to hear expert testimony from witness not designated as an expert). Next, he maintains that under the applicable Rules of Professional Conduct, Engel should not have
been required to testify against his client on an important and disputed point. See Model Code of Professional Responsibility DR 5102(B). In turn, Ahern contends that the questions asked were not seeking
Engel's expert opinion under Federal Rule of Evidence 701, [FN12] or, in the alternative, that the district court acted within its discretion in admitting the testimony. See Espeaignnette, 43 F.3d at 1011
("Determinations of whether a witness is sufficiently qualified to testify as an expert on a given subject and whether such expert testimony would be helpful to the trier of fact are committed to the sound
discretion of the trial court."); United States v. Sepulveda, 15 F.3d 1161, 1183 (1st Cir.1993) (stating that manifest error standard applies to trial judge's rulings regarding expert testimony), cert.
denied, 512 U.S. 1223, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994). His final contention is that Scholz' complaint should be deemed waived because Scholz first injected Engel's opinion testimony into the case through
his affidavits.
FN12. We note in passing that we are skeptical both of Ahern's claim that Engel was not called as an expert and of Scholz' position that Engel was surprised at being questioned as an
expert, in light of the following discussion, held immediately before Engel took the stand:
MR. ENGEL: The other thing is this delicate situation. I'm an expert witness, right?
MR. PHILLIPS: Yes.
MR. ENGEL: So I'm being called as an expert?
THE COURT: Which you were on notice.
MR ENGEL: I understand.
(Day 7, pages
5354). Despite Scholz' protestations in his brief that the reference to Engel as an expert must be a misstatement by Engel, an error by the court reporter, or based on something outside the reporter's hearing, it
seems apparent to us that both parties foresaw the possibility of expert testimony being elicited. Indeed, the court's statement above suggests that it based its later ruling on the same premise.
We
need not consider these arguments, however, for we find that, even assuming the trial court erred in admitting the challenged section of Engel's testimony, it was not harmful error. Essentially, the challenged
evidence was that in the "hundreds and hundreds and hundreds and more" contracts that he has reviewed, Engel never saw "legal fees designated in a contract as anything, and certainly not as recording
costs." (Day 7, page 73). Having examined the record as a whole to determine if admitting this evidence affected Scholz' substantial rights, in accordance with our legal framework, we find that any
court error did not amount to harmful error.
First, although the issue of whether Scholz breached the FMA was certainly a major focus of the case, and Engel's testimony related to the single largest
deduction taken from the royalties on the Scholz Statement, we disagree with Scholz' contention that it was probably determinative for the jury, for several reasons. Ames and Stewart L. Levy ("Levy"),
who has served as Ahern's counsel in the past and who was designated an expert on the subject of the reasonableness of the attorney's fees, both testified that attorney's fees are not recording expenses or recording
costs. Ahern testified that they are not artist costs or expenses for recording purposes. We found no testimony, besides Engel's, contesting this point. Levy challenged the fees' inclusion on the
Scholz Statement on another front as well, stating that Ahern was asked to pay for services that at times were working against his best interests, including time billed on motions to preclude a stipulation which would
have had Sony or CBS dropping Ahern from the lawsuit. In short, he stated,
We start off with the proposition that here is Mr. Ahern who is not directing Mr. Scholz to jump labels, not instructing Mr. Engel to do
anything. Because Mr. Scholz decides to do what he is doing, not only does Mr. Ahern get sued by CBS, not only is Mr. Ahern's income from CBS cut off, now Mr. Scholz and his attorney, Mr. Engel, expect Mr. Ahern not
only to accept that but to defray part of the cost of Mr. Engel doing this. I find that outrageous.
(Day 7, page 95). Engel testified that the attempt to keep Ahern in the case was not directed
solely at him, but was part of an attempt to keep CBS from making deals with potential witnesses.
The fees were not disputed solely on the basis of the appropriateness of their deduction. Levy
testified at length that the fees themselves were unreasonable. He testified that he felt that Engel's firm did the work without any regard to any kind of budget, without any cap on their work. Then they
turned around and said, he said we had carte blanche. Suddenly when the case is over in 1990, we are told it is $3 million.... There were no parameters. Mr. Engel did what he wanted to do. No one
was checking what he did to say it was too expensive, don't do it.
(Day 7, pages 10405). In turn, Engel testified that the fees were higher than originally estimated because the head of CBS personally
pursued the litigation to the "bitter end," despite repeated attempts to settle. Ultimately, he maintained, Scholz prevailed and won moneys for the entire bandand Ahern.
In fact, the attorney's
fees were not the only challenged deduction on the Scholz Statement. There was lengthy testimony questioning and defending many of the other deductions, most notably the producer's fee and the more than 11,000
hours of studio time Scholz charged for. Therefore, even if the jury felt the deduction of the attorney's feesor of some of them was appropriate, they could still have reasonably found that Scholz materially
breached the FMA. Between the additional evidence, on both sides, as to whether the legal fees could be commercially reasonable recording expenses, whether the amount of fees charged were reasonable, and whether
other deductions on the Statement were reasonable, we find that Engel's challenged testimony was not central to the case.
Second, the evidence admitted did not have an unduly prejudicial effect. When
called to the stand by his cocounsel, Engel was able to clarify that, while he felt he was asked about "recording costs," the FMA actually addresses "recording expenses":
Q. Does the
first question, does the further modification use the term "recording costs"?
A. My recollection is, the [F]irst Modification Agreement uses the term "recording expenses." I was
asked about recording costs.
* * *
Q. Do recording contracts use the term "recording expenses" or "recording costs"?
A. I, in all the recording contracts I've seen, in many of them, I don't remember the term
"recording expenses" ever used, it's always "recording costs" that I've seen in the clause.
(Day 13, pages 110112). He followed up on this in his closing argument, stating that
"[q]uestions were asked about recording costs, but recording costs is not the word used [in the FMA]." (Day 15, page 18). We find that this additional testimony by Engel counters the potential
prejudicial effect of his challenged statement. Scholz argues on appeal that the prejudicial effect of the testimony was compounded by the statement of Ahern's counsel in his closing argument that there is no
testimony before you, ladies and gentlemen, that legal costs in litigation that Mr. Scholz was in is a recording cost.
In fact, to the contrary, the only testimony here has been that legal costslegal fees
and legal costs are not recording costs.
You may recall Mr. Engel uncomfortably on the witness stand, after I qualified him on his expertise in matters of this sort, acknowledging that this was the case.
(Day 15, page 45). However, between the totality of the evidence at trial and the additional statements Engel himself made, both as witness and as counsel, we do not feel that this reference to Engel
in the hour spent in closing argument by Ahern's counsel could be found to sway the jury's decision, prompting harmful error. See Espeaignnette, 43 F.3d at 9.
B. The Omitted Testimony
Scholz contends that the district court made a separate harmful error in upholding the objections made by Ahern's trial counsel when Engel's co counsel called Engel to the stand on the thirteenth day of trial and tried
to have him address his earlier testimony. After stating that the FMA used the term "recording expenses," not "recording costs," and reading out the pertinent section of the FMA, Engel's
testimony continued as follows:
Q. Have you seen contracts using only [the] words "recording costs" where artists were paid for legal fees?
A. Yes.
Q. As an expert, how
do you interpret recording expenses as it's used in the Further Modification Agreement?
MR. PHILLIPS: Objection.
THE COURT: Sustained.
THE WITNESS: Your Honor, I was asked
THE COURT: Sustained.
Q. Does the language in the Further Modification Agreement
THE COURT: He asked you a question, did you ever see it
before? Your answer was no. Now you're saying I won't allow any questions as to where you saw it.
THE WITNESS: He asked me, your Honor, I remember the exact question, because I answered
it, he asked me about interpreting recording costs. Now, if he can ask me to interpret
MR PHILLIPS: Objection, your Honor.
THE COURT: Sustained, sustained. Sustained.
THE WITNESS: Well
BY MR. PASSIN:
Q. Does the language of the Further Modification Agreement affect other deductions you mentioned in [the Scholz Statements]?
MR.
PHILLIPS: Objection. He's simply interpreting the agreement.
THE COURT: I'm going to sustain it.
THE WITNESS: Your Honor, could we have a side bar, because I think
THE COURT: No. No. Let's get going.
(Day 13, pages 11214).
On appeal, Scholz argues that the court "apparently believed that it would be too prejudicial to
Ahern to permit Engel to explain his apparently adverse expert testimony but that it was not too prejudicial to Scholz to permit Engel to testify adversely to Scholz in the first place, a horrendous conclusion."
(Appellant's Brief, page 34). We disagree. The first time Engel testified, he was asked about "contracts of performing artists and groups in the musical field." (Day 7, page 71). He
stated in the disputed testimony that he had "never seen legal fees designated in a contract as anything, and certainly not as recording costs." (Day 7, page 73 (emphasis added)). When next called
to the stand, Engel agreed that he had seen "contracts using only [the] words 'recording costs' where artists were paid for legal fees." (Day 13, page 112). The court's decision to sustain the
objection made by Ahern's counsel in the ensuing dialogue was not a refusal to allow Engel to explain his evidence on the basis of its prejudicial effect against Ahern: it was evidently a reaction to the apparent
inconsistency between these statements.
Essentially, on appeal Scholz maintains that Engel's cocounsel was not allowed to "crossexamine" him on the subject of his direct testimony for Ahern,
thereby precluding him from presenting clarifying evidence or diminishing the "sting" of an attorney testifying against his own client. This error compounded the error of admitting Engel's expert
testimony, Scholz contends. He complains that because of the court's ruling, the jury never got to hear Engel's testimony regarding other types of contracts, such as agreements between performers and managers, or
the difference between "recording costs" and "recording expenses." Nor did they hear his explanation that his answer might differ if asked about "commercially reasonable recording
expenses," not "recording costs," he notes. We view this final protest with some skepticism, however, in light of Engel's testimony on the stand that he had never seen legal fees designated "as
anything," which would, presumably, include commercially reasonable recording expenses.
Assuming, arguendo, that Engel would have made the above testimony and that the district court erred in excluding
the line of questioning, any resulting error was harmless. First, for the same reasons outlined above, the testimony, while related to a central issue, was not central in and of itself. Ames and Levy stated
that they saw no difference between "recording costs" and "recording expenses." Additional testimony debated the total amount of fees charged as well as many other aspects of the Scholz
Statement. As for the potential prejudicial effect, the testimony Engel was able to give, quoted above, made it clear that his earlier statement was directed to "recording costs," *791 not
"recording expenses," an argument he reiterated in his closing, mitigating the potential effect of the apparent inconsistency. Additionally, during his first day on the stand Engel stated, in response to
questioning about the actual charging of recording costs or expenses by a group or a performing artist, that although he reviews accountings after the fact, he has never reviewed an accounting like that provided in the
Scholz Statement. He testified that "[t]his is a special case. I don't remember any accounting that really falls into this category. This is not a standard contract." (Day 7, page 81).
While this testimony does not go directly to his prior statements, it does emphasize that the FMA is not a standard contract, implying that his and others' statements about other contracts may not be pertinent. Weighing
the above in the light of the record as a whole, see Doty, 908 F.2d at 1057, we cannot say that the court's evidentiary ruling excluded evidence that was either central or prejudicial in its effect such that it could
have swayed the factfinders' decision. Thus, even if the court erred, it did not rise to the level of harmful error. See Lubanski, 929 F.2d at 46.
C. The Overall Impact of Engel's Testimony
Of course, it is not just the impact of the information elicited from Engel that we must evaluate under the harmless error standard. We must also address the potential prejudicial effect on the jury of
seeing Engel, Scholz' counsel, take the stand, dispute with the court and opposing counsel over his testimony, and finally make a statement, apparently unwillingly, against his client's interesta statement against
which, he argues, he had to take an apparently inconsistent position in his closing argument. There is no doubt in our mind that this had some prejudicial effect on the jury. Nonetheless, we cannot say with "
'fair assurance ... that the judgment was [ ] substantially swayed by the error.' " Espeaignnette, 43 F.3d at 9 (quoting Lubanski, 929 F.2d at 46). The jury sat through fifteen days of trial, received
substantial and often cumulative testimony on all points, [FN13] and heard an hour of closing argument from each party's counsel. We find it highly unlikely that the verdict could have been the result of Engel's
questioning and the attendant commentary. Cf. United States v. Rosales, 19 F.3d 763, 768 (1st Cir.1994) (holding that prosecutor's inappropriate argument in closing did not warrant new trial under harmless error
standard).
FN13. Indeed, the evidence was so redundant that the court was prompted to exclaim thatin all my years, I have never seen a case in which the same matters have come up so many times. The
accumulation of evidence in this case is really burdensome.... I'm telling you, I've told you many times, I don't know how much longer I can take cumulative evidence. (Day 13, pages 8990).
There
are significant reasons why trial counsel should not be able to testify at trial, no matter for which party counsel testifies.
The principal ethical considerations to a lawyer testifying on behalf of his
client regarding contested issues are that the client's case will "be presented through the testimony of an obviously interested witness who is subject to impeachment on that account; and that the advocate
is, in effect, put in the unseemly position of arguing his own credibility."
Siguel v. Allstate Life Ins. Co., 141 F.R.D. 393, 396 (D.Mass.1992) (quoting ABA Comm. on Ethics and Professional
Responsibility, Formal Op. 339 (1975)). "Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between lawyer and client." Model Rules
of Professional Conduct Rule 3.7 cmt. 1. When the attorney is called to the stand by his client's opponent, the concerns are just as substantial, if not more. See Siguel, 141 F.R.D. at 396 ("Although
there are degrees of adverse testimony, there are few, if any, situations that justify acceptance or continued employment in this circumstance."). Accordingly, Model Rule of Professional Conduct 3.7 states that a
lawyer shall not act as advocate at a trial where he or she is likely to be a necessary witness, except, among other things, where the testimony relates to an uncontested issue or disqualification of the attorney would
work substantial hardship on the client. Finally, there is also the danger that the performance of the dual roles of counsel and witness will create confusion on the jury's part as to when the attorney is speaking
as a witness, "raising the possibility of the trier according testimonial credit to the prosecutor's closing argument," United States v. Johnston, 690 F.2d 638, 643 (7th Cir.1982)or, conversely, weighing the
testimony as if it were argument.
All these concerns clearly come into play at a more heightened level when trial counsel acts as an expert. However, when counsel is asked to play that role for the
length of one question in a fifteenday trial, even acknowledging the impact of the attendant discussion with the court, attempts to examine him on the testimony and references to it in the closing arguments, we cannot
hold that it rises to the level of harmful error affecting a party's substantial right where the testimony is cumulative and not a central part of the case. Any prejudice that resulted from the objectedto portions
of Engel's testimony did not rise to the level of harmful error.
