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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. Peñagarícano-Soler , 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 thirty-two counts which was reached in four hours, following a trial that lasted five weeks, incorporating more than fifty witnesses and hundreds of exhibits. Peñagarícano-Soler , 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 (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 follow-up questioning by Engel's co-counsel, Passin. [11]
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. § 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 , -- U.S. --, 115 S. Ct. 992, 994 (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(2); see Bonilla v. Yamaha Motors Corp ., 955 F.2d 150, 153 (1st 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 objected-to 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.
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