USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 97-1294

SIERRA FRIA CORP. AND RODRIGO ROCHA,

Plaintiffs, Appellants,

v.

DONALD J. EVANS, P.C., ET AL. (GOODWIN, PROCTER & HOAR),

Defendants, Appellees.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker,* Senior U.S. District Judge]

__________________________

_________________________

Before

Selya, Circuit Judge,

_____________

Coffin and Campbell, Senior Circuit Judges.

_____________________

_________________________

Stephen L. Braga,
__________________

with whom

Miller, Cassidy, Larroca &

____________________________

Lewin, L.L.P. was on brief, for appellants.

_____________
David S. Blatt,
________________

with

whom

Connolly, James J. Dillon, and

________ ________________
brief, for appellees.

John K. Villa,
_______________

Williams &
___________

Goodwin, Procter & Hoar

_______________________

were on

_________________________

October 9, 1997
________________________

________________
*Of the Southern District of New York, sitting by designation.

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

St.

Ambrose is

said to

have

advised St.

Roman style."

Augustine that "[w]hen

John

at Rome, live

Bartlett, Familiar Quotations 113

____________________

Kaplan

ed., 16th

ed. 1992).

Boston

law

and

firm

. . .

collectively

Goodwin,

clients that

when

its

In

this case, the

constituent

Procter),

acquiring real

estate

(Justin

defendants, a

partners

counselled

in the

(hereinafter

their

in Aruba

erstwhile

there

material risks associated with doing so in the Aruban style.

were

The

plaintiffs demurred and

instead traveled a path

consistent with

St. Ambrose's counsel.

Costly problems surfaced

after the deal

was done.

Unwilling

sued for malpractice.

favor.

See
___

to absorb the

loss in silence,

The district court found

Sierra Fria Corp.

_________________

v. Evans,
_____

the clients

in the lawyers'

___ F. Supp.

___ (D.

Mass.

1997) [No.

appeal.

I.
I.

95-CIV-10106-MEL,

slip

op.].

The

clients

We affirm.

TROUBLE IN PARADISE
TROUBLE IN PARADISE

Inasmuch as the

facts as

opinion

found

by the

appellants profess not to

lower court,

we lean

contest the

heavily upon

below in recounting the relevant events.

the

See id. at ___

___ ___

[slip op. at 2-18].

In 1991, plaintiffs-appellants

and Rodrigo Rocha

option to

the

Divi

Sierra Fria Corporation

(hereinafter collectively Rocha)

purchase two Aruban

Tamarijn,

from

approximately $35,000,000.

acquired an

resort hotels, the Divi

Grape

Holding

Rocha engaged

N.V.

Divi and

(Grape)

Goodwin, Procter

for

as

lead counsel,

with overall responsibility for coordinating legal

due diligence involved in the transaction.

a partner, Michael

on

the acquisition.

The law firm assigned

Glazer, and an associate, Minta

Both attorneys specialized

Kay, to work

in real estate

law, but neither previously had handled an Aruban transaction.

Kay received a

land records

from Ingrid

draft title memorandum based

Bleeker, an

on Aruban

attorney affiliated

with

Smeets, Thesseling

joint

(a firm that one

of Rocha's

hired for its

familiarity with

Aruban and

venturers had

Dutch law).

or

& Von Borkhorst

an

Kay, who had

as-built

survey

memorandum lacked solid

that

hoped to obtain either title insurance

or

surveys.

expressed

the

Bleeker

informed her

unavailable in

Aruba and

that Aruban

transactions customarily proceeded

without as-built

The prevailing practice, she said, was to requisition a

title opinion

from a

that, if an as-built

necessitate

an

local notary.

Bleeker also

survey could be

extremely

costly

and confirmed Bleeker's

informed Kay

obtained at all, it

and

Frank Zeven, a more senior member of the

Glazer

concern that

title assurances.

title insurance was

real estate

both,

time-consuming

would

process.

Smeets firm, spoke with

depiction of Aruban

real estate

practices.

Based on these conversations, Glazer and Kay understood

that if Rocha purchased the hotels according to Aruban custom, he

risked not knowing

exactly what assets he was

concern heightened when

they realized that a

(Dutch Village) adjoined the Divi

acquiring.

Their

time-share complex

Tamarijn Beach Resort and that

no clearly visible dividing line separated the properties.

Thus,

Kay spoke to Christopher DeChiario, Rocha's long-time aide.

She

explained

and

the

hazards

DeChiario promised

to

of

proceeding

discuss the

later spoke

directly to Rocha

absence

of

survey.

without

matter with

survey,

Rocha.

about the risks attendant

Rocha

indicated

that

he

Consequently, Goodwin, Procter

commission a

Kay continued to

determine

precisely

what

assets were

work with

located

on

to the

was

particularly concerned.

survey and

Glazer

not

did not

Bleeker to

the hotels'

properties.

Bleeker

eventually

properties to Goodwin,

maps

that,

did not answer

without

Procter.

mailed

several

of

the

Kay informed DeChiario that the

the boundary questions

survey, Rocha

maps

lacked

and again explained

assurance

that

he was

purchasing all the improvements.

DeChiario told Kay to press on

with the transaction notwithstanding the absence of a survey, and

to focus her efforts on securing a cross-use agreement with Dutch

Village

that

would permit

Divi

Tamarijn guests

to

use Dutch

Village's facilities, and vice-versa.

When Glazer

iron out some

and Kay met

with Rocha

and DeChiario

to

wrinkles in the proposed cross-use agreement, they

once again explained that, absent a survey, a purchaser could not

know

whether

the

hotels' facilities.

obtaining

a survey

envisioned property

encompassed

Rocha stated that he was

and that

he was

of the

not interested in

willing to

seemingly lucrative transaction without one.

all

consummate the

Kay then drafted a

memorandum detailing

her concerns and

sent copies to

Rocha and

DeChiario.

During

a subsequent

conference

call

other investors, Kay again voiced her worries

of various

facilities.

that speed was

take control

Rocha

hotels during the

He

and

about the location

grew impatient and made

his highest priority.

of the

with Rocha

it clear

expressed eagerness to

height of

the 1991-1992

tourist season,

and he

indicated a willingness

to rely

on the

cross-use agreement and the customary Aruban title assurances for

protection.

Goodwin,

Procter

opinion from Maria

use

11,

standard

Aruban

Eman, an Aruban notary, firmed

agreement, and

February

received

1992.

thereafter

consummated the

The

did

closing

not

title

up the cross-

transaction

bring

on

closure:

approximately one year later, Rocha learned that assets having an

appraised

spaces,

value in excess of $4,000,000

and

an

administrative

laundry facilities

After

assets, Rocha

building

tennis courts, parking

housing

the

hotels'

lay on land belonging to Dutch Village.

unsuccessfully attempting to

invoked diversity

gain title

jurisdiction, see
___

to the

28 U.S.C.

1332(a) (1994), and

his complaint,

breach

of a

brought suit against

Rocha accused

the defendants

contractual obligation

skillfully, prudently,

Goodwin, Procter.

to

and accurately.

of negligence

perform legal

Goodwin,

In

and

services

Procter denied

Rocha's charges.

The

United States District

Court for the

District of

Massachusetts,

Morris

five-day

bench trial.

which he

identified the

E.

Lasker, District

The

"informed Rocha of

survey]

with

sufficient

certain that his decision

at

favor, basing

3].

his decision

relative credibility of

Judge

Lasker

credited

repeatedly

had warned

purchasing

the

hotels

particularity

Sierra Fria,
___________

He resolved

Rocha

on an

about

dangers

survey

and

the

In particular,

testimony

without a

defendants'

assessment of

attorneys'

the

make

the purchase

in the

Glazer, Kay, and Rocha.

the

to

___ F. Supp. at ___

this issue

primarily

Goodwin,

proceeding without a

on whether to consummate

intelligent and knowing."

[slip op.

and

opinion in

as whether

th[e] risk [of

emphasis

conducted a

authored an

controlling issue

Procter

was

judge then

Judge,

that

they

attendant

to

found incredible

Rocha's denial that they had uttered such warnings.1

See

id. at

___

___

___ [slip op. at 16].

II.
II.

THE LEGAL LANDSCAPE

THE LEGAL LANDSCAPE

Goodwin, Procter

Massachusetts.

located abroad,

supplies

is a

Boston-based firm,

retained in

Although the firm devoted its labors to

neither

party disputes

property

that Massachusetts

the substantive rule of decision.

law

We therefore survey

Massachusetts legal malpractice law to determine whether Goodwin,

Procter's conduct falls safely within its boundaries.

See Borden
___ ______

v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991);
__________________________

____________________

1The court
claims.
23-24,

also ruled against

See Sierra Fria,

___ ___________
28].

None

of

Rocha on a variety

of other

___ F. Supp. at ___, ___ [slip

those

rulings

has been

appealed

op. at

and,

therefore, we take no view of them.

Moores v. Greenberg, 834 F.2d 1105, 1107 n.2 (1st Cir. 1987).
______
_________

In

general, Massachusetts law

legal malpractice case

the

client, that

proximately caused

he

to show that

breached

requires a client

the attorney had a

the duty,

the plaintiff's harm.

and

that his

in a

duty to

breach

See Fishman v. Brooks,

___ _______
______

487

N.E.2d 1377,

1379-80 (Mass.

1986).

The first

element is

indigenous to the attorney-client relationship; in Massachusetts,

as elsewhere,

an

attorney owes

his

or her

client a

duty

to

exercise a reasonable degree of care and skill in the performance

of legal

tasks.

Cir. 1987);

See Wagenmann v. Adams,

___ _________
_____

28, 29

(Mass. 1985).

The second element is of critical importance here.

Under it, the

plaintiff

Pongonis v.
________

829 F.2d 196, 218 (1st

"must demonstrate that the attorney failed to exercise

reasonable care

attorney

Saab, 486 N.E.2d

____

and skill in

was retained."

Levenson & Wekstein,

___________________

handling the matter for

Colucci
_______

v.

Rosen, Goldberg, Slavet,

_________________________

515 N.E.2d 891, 894 (Mass.

The third element

is standard fare in tort

no

connection

discussion in

with

which the

Rocha's

App. Ct. 1987).

actions and requires

central

theory

of

liability;

if,

on

these

facts,

closing

without

survey

constituted malpractice, then the harm to Rocha is manifest.

Of course, generalized concepts of duty and breach must

be adapted to fit particular contexts.

advice from

full

and

interests."

This

Thus, when a client seeks

an attorney, the attorney owes the client "a duty of

fair

disclosure of

Williams
________

means that

the

facts

material

v. Ely, 668 N.E.2d 799,

___

attorney

must advise

to the

client's

806 (Mass. 1996).

the

client of

any

significant legal risks involved

and must do

to

so in terms sufficiently plain to

assess both

situation.

in a contemplated

the

risks

Consequently,

and their

in a

fact must determine

III.
III.

his

that

counseling function,

whether the attorney's

permitted the client adequately to

given course of action.

impact on

malpractice action

implicates an attorney's performance of his

the trier of

permit the client

potential

legal

transaction,

advice

weigh the risks involved in a

See id.
___ ___

ANALYSIS
ANALYSIS

Although Rocha

presents a

multifaceted asseverational

array, his appeal boils down to two interlocking claims of error.

We examine them sequentially.

A.
A.
__

The

appellant posits that the district court's opinion

violates Fed. R.

Civ. P. 52(a)

appellate review.

52(a) dictates that, in

find the facts

its conclusions of law."

court an

effective

This proposition is unfounded.

In terms, Rule

the court "shall

and thereby precludes

obligation to

a bench trial,

specially and state

separately

This directive "impose[s] on the trial

ensure that its

ratio decidendi
_____ _________

is set

forth with enough clarity to enable a reviewing court reliably to

perform its function."

F.3d

754, 759

(1st

Touch v. Master Unit Die Prods., Inc., 43

_____
____________________________

Cir.

1995).

But

this imperative

has

practical,

neither

commonsense cast.

Rule 52(a) requires

trial judges

to pen exhaustive dissertations nor to make findings and

conclusions that are

exquisitely precise.

As long

as the trial

court

clearly

relates

decision rests and

the

findings of

fact

articulates in a readily

the conclusions that it draws

upon

which

its

intelligible manner

by applying the controlling law to

the

facts

as

found,

no

more is

Continental Cas. Ins. Co.,

__________________________

Judge

exigible.

895 F.2d 830,

See
___

842 (1st

Peckham v.
_______

Cir. 1990).

Lasker's twenty-eight page opinion clears this hurdle with

room to spare.

We

the

need not tarry.

trial testimony

of the

The judge's rescript recapitulates

key

witnesses, limns

a series

of

credibility calls, delineates reasons for crediting the testimony

of some witnesses and discounting

inferences that flow

thorough

from the credited

exposition of

contrast to the

his factual

testimony.

findings

The

judge's

stands in

unsupported generalizations that

Rule 52(a) concerns in the cases

e.g., Touch, 43

that of others, and traces the

have triggered

upon which Rocha relies.

F.3d at 758-59; Pearson

marked

v. Fair, 808 F.2d

See,
___

163,

____

_____

_______

____

166 (1st Cir. 1986) (per curiam).

Rocha

thoroughness.

tries

not comply

whistling

past

qualitative,

Procter

the

district

only a single conclusion of

with

the

Rule

52(a).

This

graveyard.

was or

representation of Rocha.

was

court's

battery of factual findings, he

not a quantitative,

either

conclusion

minimize

Regardless of the

says, the judge made

did

to

not

Rule

standard

guilty

is

law and, thus,

little more

52(a)

and

announces

than

here, Goodwin,

of negligence

in

its

Since the judge made the solitary legal

necessary for resolution

of the action,

our inquiry

focuses on the clarity of that conclusion.

Judge Lasker

framed the

applicable legal

standard in

terms of whether the law firm informed its client of the risks of

proceeding

without

particularity

consummate the

Fria, ___
____

to make

survey

"with

certain that

purchase was

sufficient

his decision on

intelligent and

F. Supp. at ___ [slip op. at

entirely consistent with

emphasis

3].

Massachusetts law.

and

whether to

knowing."

Sierra
______

This formulation is

See
___

supra Part II.

_____

The

judge then applied the standard to the discerned facts.

Sierra Fria, ___

___________

doing, he

F. Supp. at

provided a

___ [slip

clearly marked roadmap

reached a decision in this case.

does

not require more

op. at 17-18].

that shows

so

how he

The jurisprudence of Rule 52(a)

exegetic treatment.

See, e.g., Fasolino

___ ____ ________

Foods Co. v. Banca Nazionale del Lavoro, 961 F.2d 1052,

_________
__________________________

Cir. 1992);

In

See
___

Westside Property Owners v.

_________________________

1058 (2d

Schlesinger, 597
___________

F.2d

1214, 1216 n.3 (9th Cir. 1979).

B.
B.
__

Next, Rocha

appeal) mounts a

on the merits.

(who is

represented by

direct challenge to the

His new lawyer

fresh counsel

on

lower court's decision

says that he is

contesting only

the court's legal conclusion, not its factfinding.

argues,

Goodwin,

we

must

undertake

Procter not only

also disparages Rocha's

review

into

the

imbroglio before

case.

de

novo

review of

the

defends Judge Lasker's

attempt to import a de

We

address

turning to the

this

decision.

decision, but

novo standard of

standard-of-review

various facets of

10

Therefore, he

Rocha's main

claim.

1.
1.

We

court

have made it pellucid

system

are usually

arrayed

continuum, stretching from plenary

deferential modes of review .

that "appeals in the federal

along

a degree-of-deference

review at one pole to

highly

. . at the opposite pole."

In re
_____

Extradition of Howard, 996 F.2d 1320, 1327

______________________

(1st Cir. 1993).

In

the ordinary case, this paradigm requires the court of appeals to

scrutinize the trial court's answers to purely legal questions de

novo and to assess the

trial court's answers to straight factual

questions for clear error.

There

See id.
___ ___

is, however, a

middle ground which

consists of

the trial

court's answers to mixed

and that middle

review rubric.

ground is not amenable to

Rather, the applicable

depending upon the

dominated

more likely that

obtain, and the

fact

a single standard-of-

standard of review varies

nature of the mixed question;

it is, the

review will

questions of law and

the more fact-

deferential, clear-error

more law-dominated it is,

the more

likely that non-deferential, de novo review will obtain.

See id.
___ ___

at 1328.

Putting

proper

place along

the issue

the

that Rocha

law/fact

standard-of-review controversy.

seeks to

continuum

Though

ends

raise

in its

the

instant

Rocha casts his argument

artfully, it is perfectly plain that determining whether Goodwin,

Procter exercised

due

intensive exercise, see

care in

representing

Rocha is

Brennan v. Hendrigan, 888

fact-

F.2d 189, 193

___

_______

_________

11

(1st Cir. 1989), and the

appropriately treated

precedential;

we

district court, sitting without a jury,

it as such.

consistently

negligence arising in the course

the clearly

erroneous test.2

The proof of the

have

pudding is

reviewed adjudications

of

of bench trials by reference to

See, e.g., La Esperanza de P.R.,

___ ____ ______________________

Inc. v. Perez y Cia. de P.R., Inc., ___ F.3d ___, ___

____
___________________________

1997) [No.

980

96-1904, slip op.

F.2d 48, 53

at 11]; Clement v.
_______

(1st Cir. 1992);

F.2d 103, 105 (1st Cir.

DeGuio v.
______

(1st Cir.

United States,
_____________

United States, 920

_____________

1990); Obolensky v. Saldana Schmier, 409

_________
_______________

F.2d 52, 54 (1st Cir. 1969).

Under

this format, we may reverse the district judge's

conclusion that Goodwin, Procter did not act negligently only if,

"after careful

evaluation of the

abiding conviction

simply wrong."

that those

evidence, we are left

determinations

with an

and findings

are

State Police Ass'n v. Commissioner, ___ F.3d ___,

__________________
____________

___ (1st Cir. 1997) [No. 97-1319, slip op. at 9]; accord Cumpiano
______ ________

v.

Banco Santander P.R., 902

_____________________

F.2d

148, 152

(1st Cir.

1990).

Moreover, to the extent that Rocha seeks to evade the application

of

this standard

labelling, he

by

the

heavy-handed

is painting with

expedient

of

an empty palette.

creative

See Reliance
___ ________

Steel Prods. Co. v. National Fire Ins. Co., 880 F.2d

_________________
________________________

(1st Cir.

1989)

(declaring that

this

court "will

575, 577

not

permit

____________________

2This does not

down the

line.

For

mean that clear-error review

applies up and

example, a judge's determination

whether a

plaintiff has adduced sufficient evidence to create a question of

fact

on the

subject to de

issue of negligence
novo review.

Insular de Seguros, 111 F.3d

___________________

is itself

a question

of law,

See Cort s-Irizarry v.

___ _______________

Corporaci n
___________

184, 187, 189-91 (1st

Cir. 1997);

Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995).

_____
________________

12

parties

to

profit

by

dressing

factual

disputes

in

`legal'

costumery").

2.
2.

The merits

need

not detain

us.

Here, the

district

judge accepted the facts surrounding the transaction very much as

stated by Glazer and Kay, rejecting Rocha's contrary account.

do

not find the judge's decision to disbelieve Rocha's testimony

clearly erroneous.

that

We

Ample

evidence controverted Rocha's

protest

he was unaware of the dangers inherent in closing without a

survey, including the lawyers'

testimony and various documentary

evidence (notes, memos, and letters).

fall squarely within

the trier's preserve, see, e.g., Anthony v.

___ ____ _______

Sundlun, 952 F.2d 603, 606 (1st

_______

where a judge presides at

demeanor, and hears

better equipped

Credibility determinations

Cir. 1991), and for good reason:

a bench trial, observes the witnesses'

their words as they

to gauge

are uttered, he

their veracity (or

lack of

is far

veracity)

than is an appellate panel consigned to sift a paper record after

the fact.

Hence, we decline the appellant's implicit

invitation

to disturb the judge's credibility-based findings.

This determination

must evaluate the

the

attorneys'

does not end

our work.

We

still

judge's conclusion, based on his acceptance of

testimony,

that

Goodwin,

Procter

was

not

negligent.

Having performed this evaluation, we find no error.

The losing party always faces an

arduous climb when he

attempts to

impugn a factbound finding (such

negligence)

that results

from a

as a finding of no

bench trial.

Here,

however,

13

Rocha's difficulties

ascent becomes steeper

are twice compounded.

For one

when the loser bears the

thing, the

burden of proof

on the issue.

when the

For another thing, the grade increases

trier

judgment.

rests the

challenged finding

Recognizing the

on a

inhospitable nature of

still more

credibility

the terrain,

Rocha argues that, even accepting Glazer's and Kay's narrative of

what

transpired,

particularly

Goodwin,

Procter's

the firm's inadequate

time requirements of an Aruban

unfocused

advice

explanation of the

cost and

survey and its failure to suggest

a post-closing arrangement as an alternative protective mechanism

did not allow Rocha to weigh his options realistically.

In

relevant

assembling

standard

of

this

care.

argument,

Rocha

Massachusetts

overstates

law

requires

the

an

attorney performing a counseling function to advise the client in

manner

that permits

the latter

intelligently to

assess the

risks of taking (or declining to take)

lawyers

even

high-priced

lawyers

guarantors of favorable results.

nor

legally appropriate

standard of prescience.

in

exquisite

detail

to

Thus,

conceivably have a bearing on

clients

businessmen

especially

choose to go

attorney

are

not

practical,

against

or

circumstance

that

might

the client's business decision

or

See Williams, 668 N.E.2d at 806.

___ ________

By

the same token, lawyers are not

when

an

But

lawyers are not obliged to relate

fact

to anticipate remote risks.

ordinarily

It is neither fair,

benchmark

every

a particular action.

expected to persist relentlessly

clients

who

are

sophisticated

forward after being suitably informed

14

of looming risks.

1060,

1069

(N.J.

See Conklin v. Hannoch Weisman, P.C., 678 A.2d

___ _______
_____________________

1996)

(stating

that

"an

attorney

obligation `to lie down in front of a speeding train'

a bad

deal"); Horn v. Moberg, 844 P.2d

____
______

1993) (similar);

Gill v. DiFatta,
____
_______

Ct.

(similar); see
___

App.

1978)

no

to prevent

452, 455 (Wash. Ct. App.

364 So.2d 1352,

generally
_________

Jeffrey M. Smith, 2 Legal Malpractice

_________________

has

Ronald

1354-56 (La.

E. Mallen

20.2 (4th ed. 1996).

&

Then, too, expert testimony

to establish the standard of

See Wagenmann,
___ _________

829 F.2d at

almost always is

care in a legal malpractice action.

218-19; Pongonis, 486 N.E.2d

________

This case falls comfortably within the sweep of

rule.

required

at 29.

that abecedarian

And given the facts as found, the expert testimony adduced

at trial does

not support the claim of

negligence, but, rather,

confirms that Goodwin, Procter adhered to the applicable standard

of care when it advised Rocha of the risks inherent in proceeding

without a survey.

The parties each

substantively with the

practicing

testified

offered one expert witness

standard of care applicable

in Massachusetts.3

that

Goodwin,

Rocha's expert,

Procter had

two

who dealt

to attorneys

Stoddard Platt,

viable

options when

addressing

the survey problem:

to locate and commission Dutch-

speaking surveyors to fly to Aruba and map the

warn

Rocha about

the perils

of

properties, or to

closing without

a survey

and

____________________

3While
(Professor
the
been

Rocha

presented

an

additional

Richard Perlmutter), he

expert

served only to

witness

confirm that

substantive testimony of Rocha's principal expert (which had

cast in

terms of

the New

York standard of

equally in Massachusetts.

15

care) applied

permit him to make an informed decision about whether to proceed.

For the

purpose of his

Procter

never warned

transgressed

testimony, Platt

Rocha

the standard of

Phillip Nexon, started from a

truth

of Glazer's

and

cautioned Rocha and

Kay's

about

assumed that

these

care.

hazards

Goodwin,

that

and

thereby

Procter's expert,

different premise.

testimony

Goodwin,

He assumed the

they

concluded that these warnings

repeatedly

satisfied the

standard of care.

Once the judge resolved the assumptions underlying each

expert's testimony

in Goodwin, Procter's favor,

dissonance vanished.

Rocha's expert

admitted as

any substantive

much when

he

acknowledged that if "the client was brought in, . . . the issues

were discussed with the client

without

survey,"

then

and the client decided to proceed

Goodwin,

Procter

fulfilled

its

obligations

happened here

to

Rocha.

That,

of course,

or so the trier supportably

this testimonial harmony, we have

is

precisely

found.

what

In light of

no warrant to set aside, under

principles of clear-error review, the district court's conclusion

that Goodwin, Procter did not negligently advise Rocha.

3.
3.

On appeal, Rocha

attempts to blunt

reasoning by insisting that

Goodwin, Procter negligently

to explore the possibility of

by

constructing some

the force of

type of

this

failed

offsetting the absence of a survey

post-closing

arrangement.

This

16

argument founders on evidentiary shoals.4

First,

Platt

Rocha's expert

testified that he had

never consummated a real estate transaction that included a post-

closing survey component.

Goodwin, Procter's expert

as

"not

another

customary."

This jibed with the testimony of Nexon

who classified post-closing surveys

Further, Rocha

adduced no

evidence that

type of post-closing arrangement could have remedied the

boundary

problems,

much

less

that

customary

Massachusetts

practice suggested some such arrangement.

Second,

contains no expert

care required

and

perhaps

more fundamentally,

the

testimony that the Massachusetts

Goodwin,

arrangement to Rocha.

Procter to

recommend

any

standard of

post-closing

We reiterate that Rocha's expert testified

that the lawyers could conform to the standard of care

commissioning

proceeding

Rocha

a survey

without one.

appears to

decision to

record

argue

or

by

To

that

warning Rocha

avoid

of

the risks

this evidentiary

even after

he

made an

proceed without a survey, Goodwin,

either by

of

obstacle,

informed

Procter had some

residual duty to suggest a prophylactic post-closing arrangement.

Yet,

Rocha points

to

no expert

testimony

that supports

this

formulation of the standard of

care.

While "expert testimony is

not essential where the claimed

legal malpractice is so gross or

obvious

on

that laymen

can

rely

their

common

knowledge

to

discuss

and

____________________

4In
implement

point

of

fact,

Goodwin,

a post-closing arrangement

in an effort

Procter

the cross-use agreement

to ameliorate the risks inherent

hotels without an as-built survey.

17

did

in purchasing the

recognize or infer negligence," Pongonis,

________

narrow exception

to the

expert testimony

486 N.E.2d at 29, this

requirement does

not

encompass Rocha's sophisticated theory of negligence.

We summarize succinctly.

it is

readily apparent that

not poisoned by

Given the evidence of record,

the district court's

Goodwin, Procter's

failure to

conclusion is

suggest a

post-

closing arrangement as an antidote to the absence of a survey.

4.
4.

Rocha's

themes.

last

asseveration

He maintains that he

only on the

variation

on

these

agreed to proceed without a survey

condition that he receive the

as the prospective

To the extent

is a

first mortgagee, Bank

same title assurances

of Nova Scotia

that Rocha couches this contention in

(BNS).

terms of an

implied

contract, he

cannot raise it

failed

for the

to raise

first time

it

below and

on appeal.

therefore

See Correa
___ ______

v.

Hospital San Francisco, 69 F.3d 1184, 1191 (1st Cir. 1995), cert.
______________________
_____

denied, 116 S.
______

Ct. 1423 (1996); Martinez v.

________

Colon, 54 F.3d 980,

_____

987 (1st Cir.), cert. denied, 116 S. Ct. 515 (1995).

_____ ______

Even if Rocha had not

fail on

the merits.

that he would

Rocha would

Aruban

Glazer testified that

receive the same

notary.

The

testimony.

when he told

receive the same assurances as BNS,

Glazer

fundamentally the same

BNS.

waived this contention, it would

trial

judge

he meant that

title report prepared by

further

testified

[assurances], or lack of

reasonably

credited

Rocha

that

the same

Rocha

"got

assurances," as

all

of

Glazer's

Under these circumstances, the appellant's attempt to

18

transmogrify this

factual issue

into an

issue of

law fizzles.

See Reliance Steel, 880 F.2d at 577.

___ ______________

IV.
IV.

CONCLUSION
CONCLUSION

We need go no further.

The

district court warrantably

found that Goodwin, Procter warned Rocha time and again about the

risks

inherent in completing

the transaction without

a survey,

that Rocha failed to heed those warnings, and that Rocha paid the

price for

his hubris,

those warnings

both literally

fully complied

with

and figuratively.

the standard

of care

Since

that

Massachusetts law requires of practicing attorneys, we are not at

liberty

to reverse

favor.

Affirmed.
Affirmed.
________

the

entry of

judgment

in the

defendants'

19