
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  John  K.  Villa,  Williams  &               ________________               _______________   ___________          Connolly, James  J. Dillon, and  Goodwin, Procter & Hoar  were on          ________  ________________       _______________________          brief, for appellees.                              _________________________                                   October 9, 1997                               ________________________          ________________          *Of the Southern District of New York, sitting by designation.                    SELYA,  Circuit Judge.   St.  Ambrose is  said to  have                    SELYA,  Circuit Judge.                            _____________          advised St.  Augustine that "[w]hen  . . .  at Rome, live  in the          Roman style."   John  Bartlett, Familiar  Quotations 113  (Justin                                          ____________________          Kaplan  ed., 16th  ed. 1992).   In  this case, the  defendants, a          Boston  law  firm  and  its  constituent   partners  (hereinafter          collectively  Goodwin,   Procter),  counselled   their  erstwhile          clients that  when  acquiring real  estate  in Aruba  there  were          material risks associated with doing so in the Aruban style.  The          plaintiffs demurred and  instead traveled a path  consistent with          St. Ambrose's counsel.   Costly problems surfaced  after the deal          was done.                    Unwilling  to absorb the  loss in silence,  the clients          sued for malpractice.   The district court found  in the lawyers'          favor.   See  Sierra Fria Corp.  v. Evans,  ___ F. Supp.  ___ (D.                   ___  _________________     _____          Mass.  1997) [No.  95-CIV-10106-MEL,  slip  op.].    The  clients          appeal.  We affirm.          I.  TROUBLE IN PARADISE          I.  TROUBLE IN PARADISE                    Inasmuch as the  appellants profess not to  contest the          facts as  found  by the  lower court,  we lean  heavily upon  the          opinion  below in recounting the relevant events.  See id. at ___                                                             ___ ___          [slip op. at 2-18].                    In 1991, plaintiffs-appellants  Sierra Fria Corporation          and Rodrigo Rocha   (hereinafter collectively Rocha)  acquired an          option to  purchase two Aruban  resort hotels, the Divi  Divi and          the   Divi  Tamarijn,  from   Grape  Holding  N.V.   (Grape)  for          approximately $35,000,000.    Rocha engaged  Goodwin, Procter  as                                          2          lead counsel,  with overall responsibility for coordinating legal          due diligence involved in the transaction.  The law firm assigned          a partner, Michael  Glazer, and an associate, Minta  Kay, to work          on  the acquisition.   Both attorneys specialized  in real estate          law, but neither previously had handled an Aruban transaction.                    Kay received a  draft title memorandum based  on Aruban          land records  from Ingrid  Bleeker, an  attorney affiliated  with          Smeets, Thesseling  & Von Borkhorst  (a firm that one  of Rocha's          joint  venturers had  hired for its  familiarity with  Aruban and          Dutch law).  Kay, who had  hoped to obtain either title insurance          or  an  as-built  survey  or  both,  expressed  concern that  the          memorandum lacked solid  title assurances.  Bleeker  informed her          that  title insurance was  unavailable in  Aruba and  that Aruban          real estate  transactions customarily proceeded  without as-built          surveys.  The prevailing practice, she said, was to requisition a          title opinion  from a  local notary.   Bleeker also  informed Kay          that, if an as-built  survey could be  obtained at all, it  would          necessitate  an  extremely  costly  and  time-consuming  process.          Frank Zeven, a more senior member of the  Smeets firm, spoke with          Glazer  and confirmed Bleeker's  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  acquiring.  Their          concern heightened when  they realized that a  time-share complex          (Dutch Village) adjoined the Divi  Tamarijn Beach Resort and that                                          3          no clearly visible dividing line separated the properties.  Thus,          Kay spoke to Christopher DeChiario, Rocha's long-time aide.   She          explained  the  hazards  of  proceeding  without  a  survey,  and          DeChiario promised  to  discuss the  matter with  Rocha.   Glazer          later spoke  directly to Rocha  about the risks attendant  to the          absence  of  a   survey.    Rocha  indicated  that   he  was  not          particularly concerned.   Consequently, Goodwin, Procter  did not          commission a  survey and  Kay continued to  work with  Bleeker to          determine  precisely  what  assets were  located  on  the hotels'          properties.                    Bleeker   eventually  mailed   several   maps  of   the          properties to Goodwin,  Procter.  Kay informed DeChiario that the          maps  did not answer  the boundary questions  and again explained          that,  without  a  survey, Rocha  lacked  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  and Kay met  with Rocha  and DeChiario  to          iron out some  wrinkles in the proposed cross-use agreement, they          once again explained that, absent a survey, a purchaser could not          know  whether  the  envisioned property  encompassed  all  of the          hotels' facilities.   Rocha stated that he was  not interested in          obtaining  a survey  and that  he was  willing to  consummate the          seemingly lucrative transaction without one.   Kay then drafted a                                          4          memorandum detailing  her concerns and  sent copies to  Rocha and          DeChiario.                    During  a subsequent  conference  call  with Rocha  and          other investors, Kay again voiced her worries  about the location          of various  facilities.  Rocha  grew impatient and made  it clear          that speed was  his highest priority.  He  expressed eagerness to          take control  of the  hotels during the  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  received  a  standard  Aruban  title          opinion from Maria  Eman, an Aruban notary, firmed  up the cross-          use  agreement, and  thereafter  consummated the  transaction  on          February  11,  1992.     The  closing  did  not  bring   closure:          approximately one year later, Rocha learned that assets having an          appraised  value in excess of $4,000,000   tennis courts, parking          spaces,  and  an  administrative  building  housing  the  hotels'          laundry facilities   lay on land belonging to Dutch Village.                    After  unsuccessfully attempting to  gain title  to the          assets, Rocha  invoked diversity  jurisdiction, see  28 U.S.C.                                                             ___          1332(a) (1994), and  brought suit against  Goodwin, Procter.   In          his complaint,  Rocha accused  the defendants  of negligence  and          breach  of a  contractual obligation  to  perform legal  services          skillfully, prudently,  and accurately.  Goodwin,  Procter denied          Rocha's charges.                    The  United States District  Court for the  District of                                          5          Massachusetts,  Morris  E.  Lasker, District  Judge,  conducted a          five-day  bench trial.   The  judge then  authored an  opinion in          which he  identified the  controlling issue  as whether  Goodwin,          Procter  "informed Rocha of  th[e] risk [of  proceeding without a          survey]  with  sufficient  emphasis  and  particularity  to  make          certain that his decision  on whether to consummate  the purchase          was  intelligent and knowing."  Sierra Fria,  ___ F. Supp. at ___                                          ___________          [slip op.  at  3].   He resolved  this issue  in the  defendants'          favor, basing  his decision  primarily  on an  assessment of  the          relative credibility of  Glazer, Kay, and Rocha.   In particular,          Judge  Lasker  credited   the  attorneys'  testimony  that   they          repeatedly  had warned  Rocha  about  the  dangers  attendant  to          purchasing  the  hotels  without a  survey  and  found incredible          Rocha's denial that they had uttered such warnings.1  See  id. at                                                                ___  ___          ___ [slip op. at 16].          II.  THE LEGAL LANDSCAPE          II.  THE LEGAL LANDSCAPE                    Goodwin, Procter  is a  Boston-based firm,  retained in          Massachusetts.  Although the firm devoted its labors to  property          located abroad,  neither  party disputes  that Massachusetts  law          supplies  the substantive rule of decision.   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  also ruled against  Rocha on a variety  of other          claims.  See Sierra Fria,  ___ F. Supp. at ___, ___ [slip  op. at                   ___ ___________          23-24,  28].   None  of  those  rulings  has been  appealed  and,          therefore, we take no view of them.                                          6          Moores v. Greenberg, 834 F.2d 1105, 1107 n.2 (1st Cir. 1987).          ______    _________                    In  general, Massachusetts law  requires a client  in a          legal malpractice case  to show that  the attorney had a  duty to          the  client, that  he  breached  the duty,  and  that his  breach          proximately caused  the plaintiff's harm.  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.  See Wagenmann v. Adams,  829 F.2d 196, 218 (1st                            ___ _________    _____          Cir. 1987);  Pongonis v.  Saab, 486 N.E.2d  28, 29  (Mass. 1985).                       ________     ____          The second element is of critical importance here.  Under it, the          plaintiff  "must demonstrate that the attorney failed to exercise          reasonable care  and skill in  handling the matter for  which the          attorney  was retained."   Colucci  v.  Rosen, Goldberg,  Slavet,                                     _______      _________________________          Levenson & Wekstein,  515 N.E.2d 891, 894 (Mass.  App. Ct. 1987).          ___________________          The third element  is standard fare in tort  actions and requires          no  discussion in  connection  with  Rocha's  central  theory  of          liability;  if,  on   these  facts,  closing  without   a  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.  Thus, when a client seeks          advice from  an attorney, the attorney owes the client "a duty of          full  and  fair  disclosure of  facts  material  to the  client's          interests."  Williams  v. Ely, 668 N.E.2d 799,  806 (Mass. 1996).                       ________     ___          This  means that  the  attorney  must advise  the  client of  any                                          7          significant legal risks involved  in a contemplated  transaction,          and must do  so in terms sufficiently plain to  permit the client          to  assess both  the  risks  and their  potential  impact on  his          situation.   Consequently,  in a  legal  malpractice action  that          implicates an attorney's performance of his  counseling function,          the trier of  fact must determine  whether the attorney's  advice          permitted the client adequately to  weigh the risks involved in a          given course of action.  See id.                                   ___ ___          III.  ANALYSIS          III.  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)  and thereby precludes  effective          appellate review.  This proposition is unfounded.                    In terms, Rule  52(a) dictates that, in  a bench trial,          the court "shall  find the facts  specially and state  separately          its conclusions of law."   This directive "impose[s] on the trial          court an  obligation to  ensure that its  ratio decidendi  is set                                                    _____ _________          forth with enough clarity to enable a reviewing court reliably to          perform its function."  Touch v. Master Unit Die Prods., Inc., 43                                  _____    ____________________________          F.3d  754, 759  (1st  Cir.  1995).   But  this imperative  has  a          practical,  commonsense cast.   Rule 52(a) requires  trial judges          neither  to pen exhaustive dissertations nor to make findings and          conclusions that are  exquisitely precise.  As long  as the trial                                          8          court  clearly  relates  the  findings of  fact  upon  which  its          decision rests and  articulates in a readily  intelligible manner          the conclusions that it draws  by applying the controlling law to          the  facts  as  found,  no  more is  exigible.    See  Peckham v.                                                            ___  _______          Continental Cas.  Ins. Co.,  895 F.2d 830,  842 (1st  Cir. 1990).          __________________________          Judge  Lasker's twenty-eight page opinion clears this hurdle with          room to spare.                    We  need not tarry.  The judge's rescript recapitulates          the  trial testimony  of the  key  witnesses, limns  a series  of          credibility calls, delineates reasons for crediting the testimony          of some witnesses and discounting  that of others, and traces the          inferences that flow  from the credited  testimony.  The  judge's          thorough  exposition of  his factual  findings  stands in  marked          contrast to the  unsupported generalizations that  have triggered          Rule 52(a) concerns in the cases  upon which Rocha relies.   See,                                                                       ___          e.g., Touch, 43  F.3d at 758-59; Pearson  v. Fair, 808 F.2d  163,          ____  _____                      _______     ____          166 (1st Cir. 1986) (per curiam).                    Rocha   tries   to   minimize   the  district   court's          thoroughness.  Regardless of the  battery of factual findings, he          says, the judge made  only a single conclusion of  law and, thus,          did  not comply  with  Rule  52(a).   This  is  little more  than          whistling  past   the  graveyard.     Rule   52(a)  announces   a          qualitative,  not a quantitative,  standard   and  here, Goodwin,          Procter  either  was or  was  not  guilty  of negligence  in  its          representation of Rocha.  Since the judge made the solitary legal          conclusion  necessary for resolution  of the action,  our inquiry                                          9          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  a  survey  "with   sufficient  emphasis  and          particularity  to make  certain that  his decision on  whether to          consummate the  purchase was  intelligent and  knowing."   Sierra                                                                     ______          Fria, ___  F. Supp. at ___ [slip op. at  3].  This formulation is          ____          entirely consistent with  Massachusetts law.  See  supra Part II.                                                        ___  _____          The  judge then applied the standard to the discerned facts.  See                                                                        ___          Sierra Fria, ___  F. Supp. at  ___ [slip  op. at 17-18].   In  so          ___________          doing, he  provided a  clearly marked roadmap  that shows  how he          reached a decision in this case.  The jurisprudence of Rule 52(a)          does  not require more  exegetic treatment.   See, e.g., Fasolino                                                        ___  ____  ________          Foods Co. v. Banca Nazionale del Lavoro, 961 F.2d 1052,  1058 (2d          _________    __________________________          Cir. 1992);  Westside Property  Owners v.  Schlesinger, 597  F.2d                       _________________________     ___________          1214, 1216 n.3 (9th Cir. 1979).                                          B.                                          B.                                          __                    Next, Rocha  (who is  represented by  fresh counsel  on          appeal) mounts a  direct challenge to the  lower court's decision          on the merits.   His new lawyer  says that he is  contesting only          the court's legal conclusion, not its factfinding.  Therefore, he          argues,  we  must  undertake  de  novo  review of  the  decision.          Goodwin,  Procter not only  defends Judge Lasker's  decision, but          also disparages Rocha's  attempt to import a de  novo standard of          review  into  the  case.    We  address  this  standard-of-review          imbroglio before  turning to the  various facets of  Rocha's main                                          10          claim.                                          1.                                          1.                    We  have made it pellucid  that "appeals in the federal          court  system  are usually  arrayed  along  a degree-of-deference          continuum, stretching from plenary  review at one pole to  highly          deferential modes of review .  . . 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.  See id.                                      ___ ___                    There  is, however, a  middle ground which  consists of          the trial  court's answers to mixed  questions of law and  fact            and that middle  ground is not amenable to  a single standard-of-          review rubric.  Rather, the applicable  standard of review varies          depending upon the  nature of the mixed question;  the more fact-          dominated  it is, the  more likely that  deferential, clear-error          review will  obtain, and the  more law-dominated it is,  the more          likely that non-deferential, de novo review will obtain.  See id.                                                                    ___ ___          at 1328.                    Putting  the issue  that Rocha  seeks to  raise  in its          proper  place along  the  law/fact  continuum  ends  the  instant          standard-of-review controversy.  Though  Rocha casts his argument          artfully, it is perfectly plain that determining whether Goodwin,          Procter exercised  due  care in  representing  Rocha is  a  fact-          intensive exercise, see  Brennan v. Hendrigan, 888  F.2d 189, 193                              ___  _______    _________                                          11          (1st Cir. 1989), and the  district court, sitting without a jury,          appropriately treated  it as such.   The proof of the  pudding is          precedential;  we  consistently  have  reviewed adjudications  of          negligence arising in the course  of bench trials by reference to          the clearly  erroneous test.2   See, e.g., La Esperanza  de P.R.,                                          ___  ____  ______________________          Inc. v. Perez y Cia.  de P.R., Inc., ___ F.3d ___, ___  (1st Cir.          ____    ___________________________          1997) [No.  96-1904, slip op.  at 11]; Clement v.  United States,                                                 _______     _____________          980  F.2d 48, 53  (1st Cir. 1992);  DeGuio v.  United States, 920                                              ______     _____________          F.2d 103, 105 (1st Cir.  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  evidence, we are left  with an          abiding conviction  that those  determinations  and findings  are          simply wrong."  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  by  the  heavy-handed  expedient  of  creative          labelling, he  is painting with  an empty palette.   See Reliance                                                               ___ ________          Steel Prods.  Co. v. National  Fire Ins.  Co., 880 F.2d  575, 577          _________________    ________________________          (1st Cir.  1989)  (declaring that  this  court "will  not  permit                                        ____________________               2This does not  mean that clear-error review  applies up and          down the  line.  For  example, a judge's determination  whether a          plaintiff has adduced sufficient evidence to create a question of          fact  on the  issue of negligence  is itself  a question  of law,          subject to de  novo review.   See Cort s-Irizarry v.  Corporaci n                                        ___ _______________     ___________          Insular de  Seguros, 111 F.3d  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.  We          do  not find the judge's decision to disbelieve Rocha's testimony          clearly erroneous.  Ample  evidence controverted Rocha's  protest          that  he was unaware of the dangers inherent in closing without a          survey, including the lawyers'  testimony and various documentary          evidence (notes, memos, and letters).  Credibility determinations          fall squarely within  the trier's preserve, see, e.g., Anthony v.                                                      ___  ____  _______          Sundlun, 952 F.2d 603, 606 (1st  Cir. 1991), and for good reason:          _______          where a judge presides at  a bench trial, observes the witnesses'          demeanor, and hears  their words as they  are uttered, he  is far          better equipped  to gauge  their veracity (or  lack of  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  does not end  our work.   We  still          must evaluate the  judge's conclusion, based on his acceptance of          the  attorneys'   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  as a finding of no          negligence)  that results  from a  bench trial.   Here,  however,                                          13          Rocha's difficulties  are twice compounded.   For one  thing, the          ascent becomes steeper  when the loser bears the  burden of proof          on the issue.  For another thing, the grade increases  still more          when the  trier  rests the  challenged finding  on a  credibility          judgment.   Recognizing the  inhospitable nature of  the terrain,          Rocha argues that, even accepting Glazer's and Kay's narrative of          what   transpired,   Goodwin,   Procter's  unfocused   advice              particularly  the firm's inadequate  explanation of the  cost and          time requirements of an Aruban  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  assembling  this  argument,  Rocha  overstates  the          relevant  standard  of  care.    Massachusetts  law  requires  an          attorney performing a counseling function to advise the client in          a  manner  that permits  the latter  intelligently to  assess the          risks of taking (or declining to take)  a particular action.  But          lawyers     even   high-priced  lawyers     ordinarily   are  not          guarantors of favorable results.  It is neither fair,  practical,          nor  legally appropriate  to  benchmark  an  attorney  against  a          standard of prescience.  Thus,  lawyers are not obliged to relate          in  exquisite  detail  every  fact  or  circumstance  that  might          conceivably have a bearing on  the client's business decision  or          to anticipate remote risks.  See Williams, 668 N.E.2d at 806.  By                                       ___ ________          the same token, lawyers are not  expected to persist relentlessly          when  clients      especially  clients   who  are   sophisticated          businessmen   choose to go  forward after being suitably informed                                          14          of looming risks.  See Conklin v. Hannoch Weisman, P.C., 678 A.2d                             ___ _______    _____________________          1060,  1069  (N.J.  1996)  (stating  that  "an  attorney  has  no          obligation `to lie down in front of a speeding train'  to prevent          a bad  deal"); Horn v. Moberg, 844 P.2d  452, 455 (Wash. Ct. App.                         ____    ______          1993) (similar);  Gill v. DiFatta,  364 So.2d 1352,  1354-56 (La.                            ____    _______          Ct.  App.  1978)  (similar); see  generally  Ronald  E. Mallen  &                                       ___  _________          Jeffrey M. Smith, 2 Legal Malpractice   20.2 (4th ed. 1996).                              _________________                    Then, too, expert testimony  almost always is  required          to establish the standard of  care in a legal malpractice action.          See Wagenmann,  829 F.2d at  218-19; Pongonis, 486 N.E.2d  at 29.          ___ _________                        ________          This case falls comfortably within the sweep of  that abecedarian          rule.  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  offered one expert witness  who dealt          substantively with the  standard of care applicable  to attorneys          practicing  in Massachusetts.3   Rocha's expert,  Stoddard Platt,          testified  that  Goodwin,  Procter had  two  viable  options when          addressing  the survey problem:   to locate and commission Dutch-          speaking surveyors to fly to Aruba and map the  properties, or to          warn  Rocha about  the perils  of  closing without  a survey  and                                        ____________________               3While  Rocha   presented  an   additional  expert   witness          (Professor  Richard Perlmutter), he  served only to  confirm that          the  substantive testimony of Rocha's principal expert (which had          been  cast in  terms of  the New  York standard of  care) applied          equally in Massachusetts.                                          15          permit him to make an informed decision about whether to proceed.          For the  purpose of his  testimony, Platt  assumed that  Goodwin,          Procter  never warned  Rocha  about  these  hazards  and  thereby          transgressed  the standard of  care.  Goodwin,  Procter's expert,          Phillip Nexon, started from a  different premise.  He assumed the          truth  of Glazer's  and  Kay's  testimony  that  they  repeatedly          cautioned Rocha and  concluded that these warnings  satisfied the          standard of care.                    Once the judge resolved the assumptions underlying each          expert's testimony  in Goodwin, Procter's favor,  any substantive          dissonance vanished.   Rocha's expert  admitted as  much when  he          acknowledged that if "the client was brought in, . . . the issues          were discussed with the client  and the client decided to proceed          without  a   survey,"  then   Goodwin,   Procter  fulfilled   its          obligations  to  Rocha.    That,  of course,  is  precisely  what          happened here    or so the trier supportably  found.  In light of          this testimonial harmony, we have  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  the force of  this          reasoning by insisting that  Goodwin, Procter negligently  failed          to explore the possibility of  offsetting the absence of a survey          by  constructing some  type of  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.  This jibed with the testimony of Nexon            Goodwin, Procter's expert   who classified post-closing surveys          as  "not  customary."   Further, Rocha  adduced no  evidence that          another  type of post-closing arrangement could have remedied the          boundary  problems,   much  less  that   customary  Massachusetts          practice suggested some such arrangement.                    Second,  and  perhaps  more fundamentally,  the  record          contains no expert  testimony that the Massachusetts  standard of          care required  Goodwin,  Procter to  recommend  any  post-closing          arrangement to Rocha.  We reiterate that Rocha's expert testified          that the lawyers could conform to the standard of care  either by          commissioning  a survey  or  by  warning Rocha  of  the risks  of          proceeding  without one.   To  avoid  this evidentiary  obstacle,          Rocha  appears to  argue  that  even after  he  made an  informed          decision to  proceed without a survey, Goodwin,  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  that laymen  can  rely  on  their  common  knowledge  to                                        ____________________               4In   point  of  fact,  Goodwin,  Procter  did  discuss  and          implement  a post-closing arrangement   the cross-use agreement            in an effort  to ameliorate the risks inherent  in purchasing the          hotels without an as-built survey.                                          17          recognize or infer negligence," Pongonis,  486 N.E.2d at 29, this                                          ________          narrow exception  to the  expert testimony  requirement does  not          encompass Rocha's sophisticated theory of negligence.                    We summarize succinctly.  Given the evidence of record,          it is  readily apparent that  the district court's  conclusion is          not poisoned by  Goodwin, Procter's  failure to  suggest a  post-          closing arrangement as an antidote to the absence of a survey.                                          4.                                          4.                    Rocha's  last  asseveration  is a  variation  on  these          themes.  He maintains that he  agreed to proceed without a survey          only on the  condition that he receive the  same title assurances          as the prospective  first mortgagee, Bank  of Nova Scotia  (BNS).          To the extent  that Rocha couches this contention in  terms of an          implied  contract, he  failed  to raise  it  below and  therefore          cannot raise it  for the  first time  on appeal.   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  waived this contention, it would          fail on  the merits.   Glazer testified that  when he told  Rocha          that he would  receive the same assurances as BNS,  he meant that          Rocha would  receive the same  title report prepared by  the same          Aruban   notary.    Glazer  further  testified  that  Rocha  "got          fundamentally the same  [assurances], or lack of  assurances," as          BNS.   The  trial  judge  reasonably  credited  all  of  Glazer's          testimony.  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.  CONCLUSION          IV.  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,  both literally  and figuratively.   Since          those warnings  fully complied  with  the standard  of care  that          Massachusetts law requires of practicing attorneys, we are not at          liberty  to reverse  the  entry of  judgment  in the  defendants'          favor.                    Affirmed.                    Affirmed.                    ________                                          19
