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 5-102(B). In turn, Ahern contends that the questions asked were not seeking Engel's expert opinion under Federal Rule of Evidence 701, [12] 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 53-54). 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. or, in the alternative, that the district court acted within its discretion in admitting the testimony. See Espeaignnette , 43 F.3d at 10-11 ("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. Sepúlveda , 15 F.3d 1161, 1183 (1st Cir. 1993) (stating that manifest error standard applies to trial judge's rulings regarding expert testimony), cert. denied , ___ U.S. ___, 114 S. Ct. 2714 (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.

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 104-05). 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 band -- and 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 fees -- or 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 co-counsel, Engel was able to clarify that, while he felt he was asked about "recording costs," the FMA actually addresses "recording expenses":

Q. Does the -- 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.