Faigin v. Kelly & Carucci
Opinion
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<pre> United States Court of Appeals <br> For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1589 <br> <br> A.J. FAIGIN, <br> <br> Plaintiff, Appellant, <br> <br> v. <br> <br> JAMES E. KELLY AND VIC CARUCCI, <br> <br> Defendants, Appellees. <br> <br> <br> <br> APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br> FOR THE DISTRICT OF NEW HAMPSHIRE <br> <br> [Hon. Shane Devine, Senior U.S. District Judge] <br> <br> <br> <br> Before <br> <br> Selya, Boudin and Lipez, <br> <br> Circuit Judges. <br> <br> <br> <br> A.J. Faigin, pro se ipso, for appellant. <br> Steven M. Gordon, with whom Lucy J. Karl, Shaheen & Gordon, <br>P.A., and Linda Steinman were on brief, for appellee Kelly. <br> <br> <br> <br> <br> <br>July 19, 1999 <br> <br> <br> <br> <br> <br> <br>
SELYA, Circuit Judge. This is a tale of an American <br>icon. Jim Kelly attained great celebrity during an illustrious <br>professional football career. By his own admission, however, he <br>did not handle his newfound fame and fortune as well as he handled <br>a pigskin. Looking back, Kelly believed that his adjustment had <br>been retarded by a cluster of agents who put their own financial <br>interests ahead of his. <br> Eventually, Kelly rid himself of these subalterns and <br>made different arrangements. When he thereafter penned his <br>autobiography, he made no bones about his contempt for his former <br>mentors. One of these advisers, plaintiff-appellant A.J. Faigin, <br>took umbrage and sued both Kelly and Vic Carucci, the journalist <br>who assisted Kelly in writing the book. In due season, the nisi <br>prius court granted Carucci's motion for summary judgment, but <br>denied Kelly's parallel motion. Faigin's case against Kelly was <br>tried to a jury over a 19-day span and resulted in a defendant's <br>verdict. Faigin appeals. Deterrating no reversible error, we <br>affirm. <br>I. BACKGROUND <br> We divide our canvass of background events into three <br>segments. First, we sketch the contours of the association between <br>Kelly and Faigin. Next, we discuss the book that Kelly wrote with <br>Carucci's help. Third, we limn the travel of the case. <br> <br> A. The Relationship. <br> In 1980, Faigin joined Greg Lustig and Ken Weinberger in <br>forming what they conceived as a "full-service sports management" <br>enterprise. This mini-conglomerate included three separate <br>corporations that collectively offered tax, accounting, financial, <br>and marketing services to professional athletes. Although these <br>entities seemingly overlapped in practice, the founders' game plan <br>was to furnish contract negotiation services through Lustig Pro <br>Sports, Inc. (LPS); to furnish financial and investment advice <br>through Consultants' Development Group, Inc. (CDG); and to use the <br>third entity, known as Lustig Group (L-Group), as an investment <br>vehicle. Lustig and Faigin also formed a law firm, Lustig & Faigin <br>Co., LPA (L&F), to provide legal representation to athletes and to <br>the three corporations. Faigin had an interest in each of these <br>entities: he had capital invested in LPS and served as its <br>president; he was a shareholder, director, and officer of both CDG <br>and L-Group; and he a was a principal in L & F. <br> In 1983, Kelly capped a star-studded collegiate career as <br>the quarterback of the University of Miami Hurricanes. Faigin <br>recruited him that spring and Kelly signed contracts with LPS and <br>CDG. Both the National Football League (the NFL) and the United <br>States Football League (the USFL) drafted him in the first round. <br>Kelly opted for the fledgling USFL. LPS negotiated a contract for <br>him with the Houston Gamblers and CDG assembled and managed his <br>investment portfolio. After the USFL folded in 1986, LPS helped <br>Kelly secure a contract with the Buffalo Bills of the NFL a deal <br>that, at the time, was thought to be the most lucrative in the <br>league's history. <br> In 1987, Faigin and Lustig came to a rancorous parting of <br>the ways. Faigin sent Kelly an audiotape describing the split and <br>explaining that he no longer could work with Lustig because he <br>feared for his own reputation. In this regard, Faigin noted that <br>Lustig's investment advice and other business decisions were <br>largely self-serving, and that LPS's clients, Kelly included, had <br>been improperly billed. Kelly's investigation into these charges <br>lent him no comfort and, in 1988, he severed his ties with his <br>former agents. A new set of advisers took the helm. <br> B. The Book. <br> Carucci agreed to help Kelly write his autobiography, and <br>the tome, entitled "Armed and Dangerous," was published in 1992. <br>For the most part, the account (written in the first-person <br>singular, despite Carucci's collaboration) lumped Faigin, Lustig, <br>and Weinberger together. The passages relating to them were <br>relatively brief. We reprint below the statements that sparked <br>the instant action: <br> The draft began at eight o'clock in the <br> morning. I was in Akron, Ohio, where my <br> agents at the time Greg Lustig, A.J. Faigin <br> and Ken Weinberger were based. (I wanted to <br> use another word besides "agents" here, but <br> that's better left for the lawsuit that is <br> currently pending in Texas. My mother always <br> said if you don't have anything good to say <br> about somebody, don't say anything at all.) <br> <br> * * * <br> <br> I learned my lesson the hard way about <br> whom to trust and whom not to trust in <br> business. I had had complete faith in my <br> first agents, Greg Lustig and A.J. Faigin. . . <br> . <br> <br> Then Danny and the Trevino brothers <br> started taking a closer look at my business <br> affairs. And the more they looked, the more <br> they didn't like what they found. <br> <br> Finally, I saw the light.
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<pre> United States Court of Appeals <br> For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1589 <br> <br> A.J. FAIGIN, <br> <br> Plaintiff, Appellant, <br> <br> v. <br> <br> JAMES E. KELLY AND VIC CARUCCI, <br> <br> Defendants, Appellees. <br> <br> <br> <br> APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br> FOR THE DISTRICT OF NEW HAMPSHIRE <br> <br> [Hon. Shane Devine, Senior U.S. District Judge] <br> <br> <br> <br> Before <br> <br> Selya, Boudin and Lipez, <br> <br> Circuit Judges. <br> <br> <br> <br> A.J. Faigin, pro se ipso, for appellant. <br> Steven M. Gordon, with whom Lucy J. Karl, Shaheen & Gordon, <br>P.A., and Linda Steinman were on brief, for appellee Kelly. <br> <br> <br> <br> <br> <br>July 19, 1999 <br> <br> <br> <br> <br> <br> <br>
SELYA, Circuit Judge. This is a tale of an American <br>icon. Jim Kelly attained great celebrity during an illustrious <br>professional football career. By his own admission, however, he <br>did not handle his newfound fame and fortune as well as he handled <br>a pigskin. Looking back, Kelly believed that his adjustment had <br>been retarded by a cluster of agents who put their own financial <br>interests ahead of his. <br> Eventually, Kelly rid himself of these subalterns and <br>made different arrangements. When he thereafter penned his <br>autobiography, he made no bones about his contempt for his former <br>mentors. One of these advisers, plaintiff-appellant A.J. Faigin, <br>took umbrage and sued both Kelly and Vic Carucci, the journalist <br>who assisted Kelly in writing the book. In due season, the nisi <br>prius court granted Carucci's motion for summary judgment, but <br>denied Kelly's parallel motion. Faigin's case against Kelly was <br>tried to a jury over a 19-day span and resulted in a defendant's <br>verdict. Faigin appeals. Deterrating no reversible error, we <br>affirm. <br>I. BACKGROUND <br> We divide our canvass of background events into three <br>segments. First, we sketch the contours of the association between <br>Kelly and Faigin. Next, we discuss the book that Kelly wrote with <br>Carucci's help. Third, we limn the travel of the case. <br> <br> A. The Relationship. <br> In 1980, Faigin joined Greg Lustig and Ken Weinberger in <br>forming what they conceived as a "full-service sports management" <br>enterprise. This mini-conglomerate included three separate <br>corporations that collectively offered tax, accounting, financial, <br>and marketing services to professional athletes. Although these <br>entities seemingly overlapped in practice, the founders' game plan <br>was to furnish contract negotiation services through Lustig Pro <br>Sports, Inc. (LPS); to furnish financial and investment advice <br>through Consultants' Development Group, Inc. (CDG); and to use the <br>third entity, known as Lustig Group (L-Group), as an investment <br>vehicle. Lustig and Faigin also formed a law firm, Lustig & Faigin <br>Co., LPA (L&F), to provide legal representation to athletes and to <br>the three corporations. Faigin had an interest in each of these <br>entities: he had capital invested in LPS and served as its <br>president; he was a shareholder, director, and officer of both CDG <br>and L-Group; and he a was a principal in L & F. <br> In 1983, Kelly capped a star-studded collegiate career as <br>the quarterback of the University of Miami Hurricanes. Faigin <br>recruited him that spring and Kelly signed contracts with LPS and <br>CDG. Both the National Football League (the NFL) and the United <br>States Football League (the USFL) drafted him in the first round. <br>Kelly opted for the fledgling USFL. LPS negotiated a contract for <br>him with the Houston Gamblers and CDG assembled and managed his <br>investment portfolio. After the USFL folded in 1986, LPS helped <br>Kelly secure a contract with the Buffalo Bills of the NFL a deal <br>that, at the time, was thought to be the most lucrative in the <br>league's history. <br> In 1987, Faigin and Lustig came to a rancorous parting of <br>the ways. Faigin sent Kelly an audiotape describing the split and <br>explaining that he no longer could work with Lustig because he <br>feared for his own reputation. In this regard, Faigin noted that <br>Lustig's investment advice and other business decisions were <br>largely self-serving, and that LPS's clients, Kelly included, had <br>been improperly billed. Kelly's investigation into these charges <br>lent him no comfort and, in 1988, he severed his ties with his <br>former agents. A new set of advisers took the helm. <br> B. The Book. <br> Carucci agreed to help Kelly write his autobiography, and <br>the tome, entitled "Armed and Dangerous," was published in 1992. <br>For the most part, the account (written in the first-person <br>singular, despite Carucci's collaboration) lumped Faigin, Lustig, <br>and Weinberger together. The passages relating to them were <br>relatively brief. We reprint below the statements that sparked <br>the instant action: <br> The draft began at eight o'clock in the <br> morning. I was in Akron, Ohio, where my <br> agents at the time Greg Lustig, A.J. Faigin <br> and Ken Weinberger were based. (I wanted to <br> use another word besides "agents" here, but <br> that's better left for the lawsuit that is <br> currently pending in Texas. My mother always <br> said if you don't have anything good to say <br> about somebody, don't say anything at all.) <br> <br> * * * <br> <br> I learned my lesson the hard way about <br> whom to trust and whom not to trust in <br> business. I had had complete faith in my <br> first agents, Greg Lustig and A.J. Faigin. . . <br> . <br> <br> Then Danny and the Trevino brothers <br> started taking a closer look at my business <br> affairs. And the more they looked, the more <br> they didn't like what they found. <br> <br> Finally, I saw the light. In 1988, I <br> fired Lustig and Faigin and put my brother <br> [Danny] and the Trevinos in charge of all my <br> business dealings. Then I filed a major <br> lawsuit against my former agents, as well as <br> the former owners of the Gamblers for <br> defaulting on the payment of my signing bonus. <br> <br> Fortunately, I was able to catch the <br> problem before it was too late, which made me <br> luckier than a lot of other pro athletes. <br> When you come out of college, you're so <br> trusting, so vulnerable when it comes to <br> finding people to handle your money. I'm just <br> glad that I had a brother and a couple of <br> close friends who cared enough to slap me <br> upside the head and get my attention. <br> <br> The funny thing is, my mother never <br> liked Lustig from Day One. There was <br> something about him that told her he couldn't <br> be trusted. <br> <br> I should have followed Mom's intuition. <br> <br>Jim Kelly and Vic Carucci, Armed and Dangerous 57, 159-60 (1992). <br> <br> <br> <br> C. Travel of the Case. <br> Invoking diversity jurisdiction, 28 U.S.C. 1332(a), <br>Faigin initiated a libel action against Kelly and Carucci in New <br>Hampshire's federal district court. Extensive pretrial discovery <br>ensued. In the course of the proceedings, the district court, for <br>reasons to which we shall return, granted summary judgment in <br>Carucci's favor. <br> Faigin's case against Kelly was tried to a jury. The <br>court permitted Kelly and Faigin to argue competing views of the <br>gist of the disputed passages. For his part, Kelly maintained both <br>that his comments were not defamatory (but indicated merely that he <br>had "lost trust in his agents generally") and that they were true. <br>Faigin disagreed. He argued that the statements falsely implied <br>that he was dismissed for unlawful conduct, thus damaging his <br>reputation and jeopardizing his career. The court submitted the <br>case on special interrogatories. See Fed. R. Civ. P. 49(a). In <br>response to the first question, the jury concluded that the <br>relevant passages contained defamatory statements, i.e. <br>implications of fact that tended to harm Faigin's reputation. <br> The second question went to the statements' objective <br>truth. It read: "Based on a preponderance of the evidence, do you <br>find that the defamatory statements or implications of fact in the <br>defendant's book were false?" The jury found that Faigin had <br>failed to prove falsity and, pursuant to the court's instructions, <br>returned a take-nothing verdict. <br> This appeal followed. Faigin, who was represented by <br>experienced counsel below, proceeds pro se in this court. He <br>assigns error to a plethora of rulings. Many of his arguments so <br>clearly lack persuasive force that we reject them out of hand. In <br>this opinion, we examine only the residuum of Faigin's <br>asseverational array. <br>II. ANALYSIS <br> We start our trek through the issues by scrutinizing the <br>summary judgment ruling. Moving to the trial, we next consider <br>Faigin's sufficiency-of-the-evidence challenge and his insistence <br>that the district court improperly declined to apply collateral <br>estoppel to his behoof. We then survey a number of evidentiary <br>issues and proceed from there to ponder an alleged discovery <br>violation and the lower court's denial of Faigin's request to mount <br>a rebuttal. We conclude by addressing the jury instructions. <br> A. The Entry of Summary Judgment. <br> Faigin asserts that the trial court erred in granting <br>Carucci an exit visa under the aegis of Fed. R. Civ. P. 56. See, <br>e.g., Garside v. Osco Drug, Inc., 895 F.2d 46, 48-49 (1st Cir. <br>1990) (explicating summary judgment standard). We explain briefly <br>why we regard this assertion as moot. <br> In this diversity case, New Hampshire law supplies the <br>substantive rules of decision. See Fitzgerald v. Expressway <br>Sewerage Constr., Inc., ___ F.3d ___, ___ (1st Cir. 1999) [No. 98- <br>1473, slip op. at 5]; Blinzler v. Marriott Int'l, Inc., 81 F.3d <br>1148, 1151 (1st Cir. 1996). To prove defamation under New <br>Hampshire law, a plaintiff ordinarily must establish that the <br>"defendant failed to exercise reasonable care in publishing, <br>without a valid privilege, a false and defamatory statement of fact <br>about the plaintiff to a third party." Independent Mechanical <br>Contractors, Inc. v. Gordon T. Burke & Sons, Inc., 635 A.2d 487, <br>492 (N.H. 1993), citing Restatement (Second) of Torts 558 (1977). <br>A statement is defamatory if "it tends so to harm the reputation of <br>another as to lower him in the estimation of the community or to <br>deter third persons from associating or dealing with him." <br>Restatement (Second) of Torts 559 (1977). Consequently, a libel <br>plaintiff customarily bears the burden of proving that the <br>defendant (1) lacked due care (2) in publishing a false statement <br>of fact (3) which was defamatory in nature. <br> Most rules admit of exceptions, and this rule is no <br>different. The Supreme Court has made it pellucid that the First <br>Amendment demands that a defamation plaintiff who is a "public <br>figure" must show more than mere negligence. See Masson v. New <br>Yorker Magazine, Inc., 501 U.S. 496, 510 (1991); New York Times Co. <br>v. Sullivan, 376 U.S. 254, 283 (1964). Rather, as a condition <br>precedent to recovery, such a plaintiff must prove by clear and <br>convincing evidence that the defendant published the defamatory <br>statement with actual malice, that is, that the defendant knew that <br>the statement was false or, at least, recklessly disregarded its <br>want of veracity. See Masson, 501 U.S. at 510; Pendleton v. City <br>of Haverhill, 156 F.3d 57, 65 (1st Cir. 1998). <br> In this case, the district court concluded that Faigin <br>was a limited-purpose public figure. See Faigin v. Kelly, 978 F. <br>Supp. 420, 428 (D.N.H. 1997). This meant that Faigin had the <br>responsibility of proving actual malice in order to recover for <br>defamation. See id. at 428-29. Because Faigin had adduced no <br>evidence that Carucci (who functioned principally as a scrivener) <br>either knew that the challenged statements were false or recklessly <br>disregarded their truthfulness, see id. at 429, the district court <br>granted Carucci's motion for brevis disposition. <br> In this venue, Faigin maintains that the trial court <br>erred in characterizing him as a limited-purpose public figure. <br>The argument that he presents is substantial, and the answer to the <br>question is not free from doubt. In the last analysis, however, we <br>have no occasion to probe the point. <br> At trial, the jury found specially that Faigin did not <br>prove that the allegedly defamatory statements were false. <br>Objective falsity is not only an element of a defamation action, <br>but also is logically antecedent to questions bearing upon <br>negligence or state of mind. Thus, this special finding, which we <br>conclude was supportable, see infra Part II(B), itself sufficed to <br>thwart Faigin's lawsuit and rendered the presence or absence of <br>malice irrelevant. See Restatement (Second) of Torts 581A, <br>comment h (1977) (explaining that "it is immaterial if the person <br>who publishes the statement believes it is false if it turns out to <br>be true"). It follows inexorably that, inasmuch as Faigin's status <br>as a public figure vel non bore exclusively on the state-of-mind <br>requirement, the jury's finding on falsity moots the public figure <br>inquiry. <br> B. Sufficiency of the Evidence. <br> Faigin contends that the evidence adduced at trial was <br>insufficient as a matter of law to sustain the verdict. The <br>principal problem with this contention is that Faigin neglected to <br>make a motion for judgment as a matter of law at the close of all <br>the evidence. See Fed. R. Civ. P. 50(a). He then compounded his <br>lapse by abjuring any motion for judgment notwithstanding the <br>verdict. See Fed. R. Civ. P. 50(b). When a litigant has foregone <br>a timely motion for judgment as a matter of law, the court of <br>appeals normally will not consider the legal sufficiency of the <br>evidence. See Hammond v. T.J. Litle & Co., 82 F.3d 1166, 1171 (1st <br>Cir. 1996); La Amiga del Pueblo, Inc. v. Robles, 937 F.2d 689, 691 <br>(1st Cir. 1991); Jusino v. Zayas, 875 F.2d 986, 991 (1st Cir. <br>1989). <br> We say "normally" because, even in the absence of such a <br>motion, the court of appeals retains a modicum of residual <br>discretion to inquire whether the record reflects an absolute <br>dearth of evidentiary support for the jury's verdict. See La Amiga <br>del Pueblo, 937 F.2d at 691. Here, however, such an inquiry <br>quickly reveals that the evidence is not so lopsided as to bring <br>this seldom-invoked discretion into play. To the contrary, the <br>evidence that contradicts Faigin's claim of objective falsity seems <br>more than ample. <br> We add a coda. To the extent that Faigin contends that <br>the verdict was against the weight of the evidence, his failure to <br>file a motion for new trial, see Fed. R. Civ. P. 59(a), ensnares <br>him in the toils of a similar and equally lethal procedural <br>default. See La Amiga del Pueblo, 937 F.2d at 691 (explaining that <br>if the verdict-loser has not made a timely motion for a new trial, <br>"the court of appeals will not thereafter review the weight of the <br>evidence undergirding the adverse verdict"). <br> C. Collateral Estoppel. <br> Faigin complains bitterly about the district court's <br>refusal to give preclusive effect to a sanctions order issued in <br>the aftermath of previous litigation between the protagonists. We <br>set the stage. <br> In 1989, Kelly sued Lustig, Faigin, Weinberger, and <br>numerous others in the United States District Court for the <br>Southern District of Texas. As it pertained to Faigin, the <br>complaint alleged in substance that he had played an active role in <br>misleading Kelly about certain investments. Kelly settled some <br>claims against some defendants and dropped other defendants because <br>of their penury. <br> In 1994, under pressure to comply with long-overdue <br>discovery requests, he voluntarily dismissed his claims against <br>Faigin without prejudice. Faigin then moved for sanctions, <br>claiming that Kelly had knowingly brought and maintained a <br>groundless case against him without performing the investigation <br>required under Fed. R. Civ. P. 11. The Texas court found that <br>Kelly had adduced no evidence to show that Faigin was involved in <br>the investment decisions that formed the centerpiece of the <br>litigation; determined that Kelly knew (or should have known) that <br>his allegations against Faigin were therefore frivolous; and <br>ordered Kelly to pay $11,000 in sanctions. See Kelly v. Lustig, <br>No. H-89-1931, slip op. (S.D. Tex. Aug. 12, 1994) (the Sanctions <br>Order). <br> After he had initiated the instant case, Faigin asked the <br>district court to treat the Sanctions Order as conclusive evidence <br>that Kelly knew the statements made in Armed and Dangerous were <br>false vis--vis Faigin. The court denied Faigin's motion in limine <br>and rejected similar importunings during the trial. Faigin <br>protests. <br> Fundamentally, this claim of error suffers from the same <br>infirmity as Faigin's "public figure" argument. See supra Part <br>II(A). The jury found that Faigin had failed to prove that the <br>challenged passages were false and Faigin did not claim below <br>(nor does he claim on appeal) that the Sanctions Order should have <br>been given preclusive effect on the issue of objective falsity. <br>Thus, technically, Faigin's collateral estoppel argument which <br>went only to the issue of Kelly's state of mind was rendered moot <br>by the jury's special finding on the logically antecedent issue of <br>falsity. <br> Despite this conclusion, we deem it advisable to treat <br>the collateral estoppel issue on the merits. We do so because <br>Faigin also assails the district court's refusal to admit the <br>Sanctions Order into evidence at all. See infra Part II(D). That <br>claim is far from moot (as Faigin argues, inter alia, that the <br>Sanctions Order, though not preemptive, constitutes a salient piece <br>of evidence on the issue of objective falsity), and our resolution <br>of this evidentiary ruling is necessarily informed by a <br>determination of whether the trial court erred in its assessment of <br>the collateral estoppel initiative. Hence, we inquire into the <br>court's decision not to give the Sanctions Order preclusive effect. <br>Since applications of the collateral estoppel doctrine primarily <br>present questions of law, we afford de novo review. See Keystone <br>Shipping Co. v. New Engl. Power Co., 109 F.3d 46, 50 (1st Cir. <br>1997). <br> When a party implores a federal court to give preclusive <br>effect to a prior federal court adjudication, federal law governs. <br>See Massachusetts Sch. of Law v. ABA, 142 F.3d 26, 37 (1st Cir. <br>1998); Johnson v. SCA Disposal Servs. of New Engl., Inc., 931 F.2d <br>970, 974 (1st Cir. 1991). Faigin argues here for issue preclusion <br>as opposed to claim preclusion. See, e.g., Fiumara v. Fireman's <br>Fund Ins. Cos., 746 F.2d 87, 90 n.1 (1st Cir. 1984) (remarking the <br>separate existence of the two distinct, but closely related, <br>doctrines). Under federal common law, a party seeking to estop the <br>litigation of an issue by reference to a previous adjudication <br>between the parties must establish (1) an identity of issues (that <br>is, that the issue sought to be precluded is the same as that which <br>was involved in the prior proceeding), (2) actuality of litigation <br>(that is, that the point was actually litigated in the earlier <br>proceeding), (3) finality of the earlier resolution (that is, that <br>the issue was determined by a valid and binding final judgment or <br>order), and (4) the centrality of the adjudication (that is, that <br>the determination of the issue in the prior proceeding was <br>essential to the final judgment or order). See Grella v. Salem <br>Five Cent Savings Bank, 42 F.3d 26, 30 (1st Cir. 1994); NLRB v. <br>Donna-Lee Sportswear Co., 836 F.2d 31, 34 (1st Cir. 1987); see also <br>Restatement (Second) of Judgments 27 (1982). Faigin's proffer <br>cannot clear either the first or second of these hurdles. <br> It is common ground that the reach of collateral estoppel <br>"must be confined to situations where the matter raised in the <br>second suit is identical in all respects with that decided in the <br>first proceeding." IRS v. Sunnen, 333 U.S. 591, 599-600 (1948). <br>The issue addressed and resolved by the Sanctions Order was whether <br>Kelly had abused the judicial process in failing to produce <br>evidence to substantiate claims that he had made regarding Faigin's <br>supposed involvement in shady investment activities. By contrast, <br>the issue below was the truthfulness vel non of the remarks <br>contained in Kelly's autobiography. The latter implicated Kelly's <br>overall relationship with his agents and dealt with a much broader <br>spectrum of business practices. Moreover, while the narrower <br>charges leveled by Kelly in the Texas case overlapped to some <br>modest extent with the matters at issue in the instant case, the <br>mere presence of a modicum of factual commonality does not <br>establish the requisite identity of issues for purposes of <br>collateral estoppel. See id. at 601. Rather, the issues must be <br>defined by reference to the judicial determinations at stake. See <br>id. at 600. <br> Given the Sunnen standard, there is simply too loose a <br>fit to warrant a collateral estoppel here. At issue in the Rule 11 <br>proceedings was Kelly's litigation conduct; at issue below was the <br>truth of the factual implications contained in the book. Because <br>the issues are not the same, the district court correctly refused <br>to give the Sanctions Order preclusive effect. See Thomas v. <br>Contoocook Valley Sch. Dist., 150 F.3d 31, 41 (1st Cir. 1998) <br>(rejecting collateral estoppel due to a lack of issue <br>identicality). <br> There is a second, equally compelling basis for rebuffing <br>the collateral estoppel idea. The scope of a Rule 11 hearing is <br>generally much more circumscribed than that of a trial or <br>comparable proceeding. Thus, there are legitimate questions as to <br>whether a Rule 11 sanctions order can provide a satisfactory basis <br>for issue preclusion under any circumstances in respect to the <br>merits of a complaint. See Amwest Mortgage Corp. v. Grady, 925 <br>F.2d 1162, 1165 (9th Cir. 1991); see also Cooter & Gell v. Hartmarx <br>Corp., 496 U.S. 384, 396 (1990) (warning that "[e]ven if a district <br>court indicated that a complaint was not legally tenable or <br>factually well-founded for Rule 11 purposes, the resulting Rule 11 <br>sanction would nevertheless not preclude the refiling of a <br>complaint"). By their very nature, Rule 11 inquiries are severely <br>restricted, see Fed. R. Civ. P. 11 advisory committee notes <br>(explaining that "the court must to the extent possible limit the <br>scope of sanction proceedings to the record"), and it seems odd to <br>extrapolate from them to the subsequent litigation of issues on the <br>merits. <br> Whether or not findings made in a Rule 11 proceeding can <br>ever be given collateral estoppel effect as to the merits of a <br>complaint at a subsequent trial a matter that we leave for <br>another day the Sanctions Order upon which Faigin relies misses <br>the mark. Faigin brought his Rule 11 motion based on Kelly's <br>ostensible failure adequately to investigate the facts and the law <br>prior to filing the Texas civil action. See Fed. R. Civ. P. <br>11(b)(2)-(3). The Texas court had no obligation to conduct a <br>searching inquiry into the truth or falsity of Kelly's allegations, <br>and it did not do so. Rather, the court concerned itself solely <br>with whether Kelly had made the pre-filing investigation that Rule <br>11 demands and it did so on a record essentially devoid of <br>discovery. While we do not question the propriety of the sanction <br> the fact that Kelly had maintained an action against Faigin for <br>five years without ever producing evidence in support of his claims <br>appears inexcusable we discern no sufficient indicia that the <br>issues which are determinative here actually were litigated in the <br>Rule 11 proceeding. <br> We need not paint the lily. Either of the reasons we <br>have stated is independently sufficient to justify the district <br>court's refusal to apply principles of collateral estoppel in this <br>situation. Together, they are insurmountable. <br> <br> <br> <br> D. Admissibility of the Sanctions Order. <br> Apart from collateral estoppel on the issue of knowledge, <br>Faigin sought to introduce the Sanctions Order into evidence as <br>probative on the issue of falsity. Kelly countered by invoking <br>Fed. R. Evid. 403 and moving in limine to bar any reference to the <br>Sanctions Order for this purpose. The court proceeded cautiously. <br>It took Kelly's motion under advisement, alerting the parties that <br>it needed a more complete picture of the evidence in order <br>adequately to assess the question of admissibility. See United <br>States v. Holmquist, 36 F.3d 154, 163 (1st Cir. 1994) (endorsing <br>such an approach). The court indicated that it would perform the <br>requisite balancing when the issue surfaced in a better-defined <br>context. <br> On several occasions during the trial, Faigin attempted <br>to introduce the Sanctions Order (or evidence about it). Each <br>time, the district court rejected the proffer. Faigin condemns the <br>exclusion of this evidence. We test the trial court's rulings on <br>claims of error related to the admission or exclusion of evidence <br>for abuse of discretion. See Williams v. Drake, 146 F.3d 44, 47 <br>(1st Cir. 1998); Blinzler, 81 F.3d at 1158. <br> Under Rule 403, the trier must balance probative worth <br>against unfairly prejudicial effect. We accord district courts <br>considerable latitude in this exercise. Trials are highly nuanced <br>affairs, and we are mindful that the trial judge unlike an <br>appellate panel can hear the gunfire, observe the maneuvering, <br>and smell the smoke of battle as the case plays out before the <br>jury. <br> In this instance, the disputed evidence had some <br>probative value. Kelly and Faigin argued competing views of the <br>gist of the challenged statements, and the findings in the <br>Sanctions Order tend to corroborate Faigin's claim that these <br>passages contained false implications of fact. But the probative <br>value of these findings was not great. As previously noted, the <br>issues addressed in the two fora varied significantly. For <br>example, in support of his "substantial truth" defense, Kelly <br>produced evidence below of improper overbilling, fiduciary failings <br>related to his USFL contract, a gossamer insurance policy, a <br>fraudulent assignment, and questionable tax advice involving the <br>backdating of checks. None of these items had surfaced in the <br>Texas litigation, and, therefore, the Sanctions Order had scant <br>probative value as to the accuracy of those allegations. <br> To be sure, a subset of overlapping allegations existed. <br>As to these issues, the Texas court's frivolousness finding had <br>some limited value. Still, the matter had not been fully litigated <br>and the finding stemmed from an undeveloped record. See supra Part <br>II(C). Moreover, the finding was made pursuant to a legal standard <br>very different from objective falsity. See id. The finding <br>therefore carried diminished probative value even as to the <br>overlapping issues. <br> Looking at the other pan of the scales, the district <br>court had solid reasons for concern about the untoward effects of <br>the proffered evidence. A lay jury is quite likely to give special <br>weight to judicial findings merely because they are judicial <br>findings. See Nipper v. Snipes, 7 F.3d 415, 418 (4th Cir. 1993) <br>(explaining that "judicial findings of fact present a rare case <br>where, by virtue of their having been made by a judge, they would <br>likely be given undue weight by the jury") (internal quotations <br>marks omitted). Consequently, courts, recognizing the attendant <br>danger of jury confusion and unfair prejudice, frequently have <br>approved the exclusion of judicial findings, convictions, and <br>similar evidence on Rule 403 grounds. See, e.g., Gil de Rebollo <br>v. Miami Heat Assocs., Inc., 137 F.3d 56, 64 (1st Cir. 1998) <br>(upholding decision to exclude evidence of a criminal misdemeanor <br>conviction in a related civil trial); Nipper, 7 F.3d at 418 <br>(upholding exclusion of court order in related civil case); cf. <br>Williams, 146 F.3d at 47 (affirming, in a related civil suit, <br>exclusion of guilty plea previously entered by plaintiff before <br>prison disciplinary board). We are extremely reluctant to second- <br>guess the district court's battlefield determination that the <br>scenario at hand presented a worrisome potential for such mischief. <br> Our task on appeal is not to conduct afresh the balancing <br>that Rule 403 requires. Instead, we review the record to determine <br>whether the trial court's calibration of the probative value/unfair <br>prejudice scales falls within the range of acceptable outcomes. <br>Our review indicates that the court below held the balance steady <br>and true: it excluded the Sanctions Order but permitted Faigin to <br>show Kelly's course of conduct in the prior litigation and to argue <br>to the jury that this behavior demonstrated his bad faith (or <br>worse). Rule 403 controversies by their very nature present <br>competing considerations, and compromise is often the best solution <br>for a particularly knotty Rule 403 problem. See, e.g., Williams, <br>146 F.3d at 47 (deeming it important that the court excluded only <br>the guilty plea, not evidence of the prior disciplinary proceedings <br>in gross). We think that the district court's charting of such a <br>course made good sense in the idiosyncratic circumstances of this <br>case. <br> In the end, the standard of review carries the day. We <br>have said with a regularity bordering on the monotonous that <br>"[o]nly rarely and in extraordinarily compelling circumstances <br>will we, from the vista of a cold appellate record, reverse a <br>district court's on-the-spot judgment concerning the relative <br>weighing of probative value and unfair effect." Freeman v. Package <br>Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988). This case, in <br>which the district court maximized the evidence available to the <br>jury while simultaneously minimizing the potential for confusion <br>and unfair prejudice, comes within the Freeman rule. Because no <br>"extraordinarily compelling circumstances" counsel to the contrary, <br>we hold that the lower court did not abuse its discretion in <br>excluding Faigin's proffer of the Sanctions Order. <br> E. Other Evidentiary Points. <br> Faigin offers a salmagundi of other tidbits relating to <br>the admission and/or exclusion of evidence. We comment briefly on <br>each of these contentions. The benchmark for our review remains <br>abuse of discretion. See Williams, 146 F.3d at 47; Blinzler, 81 <br>F.3d at 1158. <br> 1. Vicarious Liability. Faigin unsuccessfully moved in <br>limine to prohibit Kelly from introducing evidence on what Faigin <br>characterizes (somewhat inaccurately, in our view) as a theory of <br>"vicarious liability." He now protests the district court's denial <br>of his motion, maintaining that the charged defamation was <br>"personal" and that Kelly should not have been allowed to shift the <br>focus from Faigin as an individual by presenting evidence of <br>Faigin's partners' skullduggery (a practice that Faigin, in <br>phraseology that sheds more heat than light, calls "guilt by <br>association"). This argument lacks force. <br> At trial, Kelly maintained that his statements about <br>Faigin connoted nothing more than an overall loss of trust in his <br>former agents. In support of that theory, he sought to depict a <br>mosaic of misconduct allegedly perpetrated by LPS, CDG, L-Group, <br>and their representatives (like Lustig). Considering Faigin's ties <br>to this contingent and his fiduciary responsibilities as an <br>attorney, a principal, and a corporate officer, this evidence <br>possessed palpable relevancy. See Fed. R. Evid. 401, 402. The <br>evidence also possessed relevancy as a means of painting the <br>backdrop against which Kelly's affairs were handled and his book <br>written. We view it as well-settled that "context" evidence <br>generally is admissible, see, e.g., United States v. McKeeve, 131 <br>F.3d 1, 13-14 (1st Cir. 1997), and there is no warrant for applying <br>some other, more restrictive rule here. The district court thus <br>acted within the bounds of its discretion in permitting Kelly to <br>introduce evidence of the dubious practices in which his advisers <br>engaged, whether or not Faigin personally committed them. <br> 2. Judicial Estoppel. Faigin also suggests that this <br>same evidence should have been barred under the doctrine of <br>judicial estoppel. His refrain goes something like this: in the <br>Texas litigation, Kelly claimed that the corporations were Lustig's <br>alter egos, and, therefore, Kelly should have been prohibited from <br>asserting in this case that Faigin played a meaningful role in <br>their operation. We disagree. <br> Under certain circumstances, the doctrine of judicial <br>estoppel precludes "parties in civil litigation from asserting <br>legal or factual positions inconsistent with the positions that <br>they took in prior proceedings." United States v. Velez Carrero, <br>140 F.3d 327, 330 (1st Cir. 1998). To invoke the doctrine, the <br>proponent must show that the party to be estopped had "succeeded <br>previously with a position directly inconsistent with the one [he] <br>currently espouses." Lydon v. Boston Sand & Gravel Co., 175 F.3d <br>6, 13 (1st Cir. 1999). Passing the obvious fact that the positions <br>taken by Kelly in the two cases are hardly susceptible to <br>characterization as "directly inconsistent," Faigin made no showing <br>that Kelly succeeded in establishing his earlier position. To the <br>contrary, Kelly eventually dropped the veil-piercing claims that he <br>had asserted against Lustig and the myriad corporate entities. <br>Hence, Faigin lacks any plausible basis for a claim of judicial <br>estoppel. <br> 3. Kickback Evidence. Land, Sea & Air Development <br>Corporation (LS&A) owned certain area rights to a restaurant <br>franchise. In 1984, it contracted with L-Group to have the latter <br>"package, syndicate, and secure all necessary funding" for these <br>franchises. In return, LS&A agreed to remunerate L-Group by paying <br>commissions and making other scheduled payments as particular <br>franchise locations were developed. <br> Kelly asserted at trial that his agents steered clients' <br>funds into certain of these franchises without advising the clients <br>of L-Group's arrangement with LS&A. He asked the district court to <br>admit into evidence the memorandum of understanding (MOU) entered <br>into between LS&A and L-Group as part of his effort to show that L- <br>Group's financial interest in these projects had not been fully <br>disclosed in the offering materials that the agents presented to <br>clients (Kelly included). The district court admitted the MOU over <br>Faigin's objection. <br> On appeal, Faigin contends that admitting the evidence <br>and allowing Kelly to refer to it as evidence of a "kickback" <br>scheme created unfair prejudice. See Fed. R. Evid. 403. We reject <br>this contention. Faigin, an officer and director of L-Group, was <br>privy to the MOU indeed, he had subscribed his name as a witness <br>to Lustig's execution of it and the document, when taken in <br>conjunction with other properly admitted materials, constituted <br>relevant evidence of a blatant conflict of interest. <br> To be sure, the evidence was prejudicial in the sense <br>that it hurt Faigin's chances of prevailing at trial. But that <br>kind of prejudice is not a basis for judicial exclusion of <br>probative evidence. All evidence introduced by a party is designed <br>to be prejudicial to help his case, or to harm his opponent's <br>case, or both. Thus, "[t]he fact that a piece of evidence hurts a <br>party's chances does not mean it should automatically be excluded. <br>If that were true, there would be precious little left in the way <br>of probative evidence in any case." Onujiogu v. United States, 817 <br>F.2d 3, 6 (1st Cir. 1987). The question is one of unfair prejudice <br> and we see none here. <br> Faigin's complaint about the characterization of the MOU <br>as evidence of a "kickback" rather than a "sales commission" is <br>unavailing. He never specifically objected below to the use of the <br>word, and, thus, has forfeited the point. See Campos-Orrego v. <br>Rivera, 175 F.3d 89, 95 (1st Cir. 1999); Teamsters, Chauffeurs, <br>Warehousemen and Helpers Union v. Superline Transp. Co., 953 F.2d <br>17, 21 (1st Cir. 1992). Of course, we still could intervene to <br>correct plain error, forfeiture notwithstanding but plain error <br>is plainly absent in this instance. Although the word "kickback" <br>is pejorative, trials are flesh-and-blood affairs. Courts <br>routinely grant lawyers and litigants some margin for rhetorical <br>flourishes. See generally Wagenmann v. Adams, 829 F.2d 196, 217 <br>(1st Cir. 1987) ("Our judicial system is not so impractical as to <br>demand that the last drop of juice be squeezed from evidence before <br>a jury can consider it."). Here, the court permitted the parties <br>to explore the MOU's ramifications and characterize it as they <br>preferred, leaving the jury to decide whether the arrangement more <br>closely resembled a straightforward sales commission or something <br>less savory. While calling the arrangement a kickback was strong <br>medicine (and perhaps better left unsaid), it strains credulity to <br>suggest, in the absence of a specific objection, that the use of <br>the word caused justice to miscarry. See Campos-Orrego, 175 F.3d <br>at 95 (finding "no patent injustice . . . in holding the <br>appellant[] to the readily foreseeable consequences of [his] own <br>trial tactics," and, accordingly, finding no plain error). <br> 4. Former Clients. During the trial, the district court <br>permitted four former clients of LPS to testify. Faigin contends <br>generally that this evidence was erroneously admitted. However, he <br>failed to make sufficiently specific contemporaneous objections <br>when the witnesses were called to testify, thus negating the <br>contention that he seeks to advance here. See United States v. <br>Saccoccia, 58 F.3d 754, 780 (1st Cir. 1995); see also Fed. R. Evid. <br>103(a). <br> Relatedly, Faigin complains about the introduction of <br>evidence of other lawsuits brought by former clients against <br>Lustig, LPS, CDG, and/or L-Group. While we doubt that this <br>complaint has been properly preserved, we do not doubt that it <br>like the claim related to the testimony of the former clients is <br>meritless. Testimony by other athletes regarding their <br>difficulties with Faigin and his associates went directly to the <br>truth of the disputed statements contained in Kelly's <br>autobiography. Similarly, evidence of other lawsuits whether or <br>not they named Faigin as a defendant was probative to impeach <br>Faigin's claimed ignorance of any corporate misconduct. Then, too, <br>much of this evidence was relevant to damages, specifically, the <br>state of Faigin's reputation prior to the publication of Armed and <br>Dangerous. See Bularz v. Prudential Ins. Co., 93 F.3d 372, 378-79 <br>(7th Cir. 1996) (finding evidence of complaints by other customers <br>relevant both to the truth of the allegedly defamatory statement <br>and to the pre-publication state of the plaintiff's reputation). <br> To say more on this front would be supererogatory. <br>Bearing in mind that "[a] trial is a search for truth and cannot <br>sensibly take place in a vacuum," Real v. Hogan, 828 F.2d 58, 62 <br>(1st Cir. 1987), we reject the entire alphabet of evidentiary error <br>that Faigin marshals. <br> F. The Alleged Discovery Violation. <br> Faigin propounded interrogatories concerning Kelly's <br>investments over a 13-year span. Kelly inventoried his <br>investments, but was less forthcoming in respect to two ancillary <br>interrogatories. One of these asked him to specify, for each such <br>investment, "the amount of money that the investment has made or <br>lost from the inception to date, and, if sold, identify the date of <br>sale." The other requested (a) that he acknowledge, in regard to <br>each poor performer, "whether [he] received a tax deduction for the <br>loss," and (b) that he confirm "the total sum of [all such] tax <br>deductions." When compelled to answer these two interrogatories, <br>Kelly replied that "[t]he financial data required to respond . . . <br>is not readily available." He then referred Faigin to particular <br>financial schedules and statements previously produced and <br>represented that these "statements reflect the value of [Kelly's] <br>holdings as of the dates thereof." Finally, he explained that, <br>because of a confidentiality agreement imposed by an arbitrator, he <br>could not furnish information with regard to investments that he <br>had made through Shearson Lehman Brothers. Faigin made no further <br>effort to compel more particularized answers to these two <br>interrogatories. <br> At trial, Faigin labored to exclude evidence that <br>numerous investments arranged for Kelly by CDG and L-Group proved <br>worthless. To support this entreaty, Faigin cited the <br>incompleteness of Kelly's answers to the two ancillary <br>interrogatories and asked the district court to invoke its powers <br>under Fed. R. Civ. P. 37(b)(2). The court refused to rule out the <br>evidence of investment losses and Kelly introduced it. Faigin <br>assigns error. <br> A district court's case-management powers apply with <br>particular force to the regulation of discovery and the <br>reconciliation of discovery disputes. See Daigle v. Maine Med. <br>Ctr., Inc., 14 F.3d 684, 692 (1st Cir. 1994); Mack v. Great Atl. & <br>Pac. Tea Co., 871 F.2d 179, 186 (1st Cir. 1989); In re Recticel <br>Foam Corp., 859 F.2d 1000, 1006 (1st Cir. 1988). The standard of <br>review in discovery matters is not appellant-friendly. The court <br>of appeals "will intervene in such matters only upon a clear <br>showing of manifest injustice, that is, where the lower court's <br>discovery order was plainly wrong and resulted in substantial <br>prejudice to the aggrieved party." Mack, 871 F.2d at 186. <br> In this instance, the trial court heard arguments as to <br>whether the interrogatory answers complied with the order <br>compelling further responses. Ultimately, the court ruled in <br>Kelly's favor, implicitly determining (as had been argued) that <br>Kelly had substantially complied with the order and that in all <br>events Faigin had accumulated sufficient information to contest the <br>claimed losses. Having carefully reviewed the record, we deem this <br>two-part ruling supportable. <br> We start with two general propositions of indisputable <br>validity. First, the question whether a party adequately has <br>complied with a court order is a matter peculiarly within the ken <br>of the judge who issued the order. See De Leon Lopez v. <br>Corporacion Insular de Seguros, 931 F.2d 116, 120 n.3 (1st Cir. <br>1991) ("A district court, after all, is in the best position to <br>determine whether a party's filings are sufficient to comply with <br>the court's own order."); Martha's Vineyard Scuba Headquarters, <br>Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d <br>1059, 1066-67 (1st Cir. 1987) (similar). Second, answering <br>interrogatories is more a matter of art than of science. Thus, the <br>sufficiency of an answer to an interrogatory frequently depends on <br>the surrounding circumstances. <br> Proceeding from the general to the specific, we deem it <br>especially important here that, in the course of protracted <br>pretrial discovery, Faigin received voluminous documentary evidence <br>concerning Kelly's finances (e.g., tax returns, financial <br>statements, and balance sheets). Parties sometimes can answer <br>interrogatories satisfactorily by reference to information <br>previously produced, see, e.g., Fed. R. Civ. P. 33(d), and the <br>district court apparently thought that this was so in the instant <br>case. Given the differing institutional competencies of trial and <br>appellate tribunals, we decline to play Monday-morning quarterback <br>and substitute our collective judgement for that of the district <br>court. See Mack, 871 F.2d at 187 (upholding the denial of motion <br>to compel further answers to interrogatories and noting that "above <br>all, the trier must be accorded considerable latitude in gauging <br>the extent of a party's compliance" with discovery requests); see <br>also id. ("Sticking the appellate nose too readily into the <br>district court's scope-of-discovery tent is . . . a recipe for <br>disaster."). <br> If we had substantial doubts about this question and we <br>do not they would be quelled by Faigin's failure to request a <br>continuance. Faigin claims to have been ambushed by the evidence <br>of some $800,000 in investment losses. However, the most <br>efficacious remedy for litigatory surprise is to seek a continuance <br>at the time the surprise emerges. See Jom, Inc. v. Adell Plastics, <br>Inc., 151 F.3d 15, 20 n.2 (1st Cir. 1998); Szeliga v. General <br>Motors Corp., 728 F.2d 566, 568 (1st Cir. 1984); see also United <br>States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir. 1989) <br>(suggesting that if a party is confronted by unfair surprise, a <br>continuance usually provides "a complete cure"). If a party <br>eschews such a course, and then seeks to complain about unfair <br>surprise after he receives an unfavorable judgment or verdict, "his <br>neglect to ask the district court for a continuance to meet the <br>claimed exigency" undercuts his complaint. Diaz-Villafane, 874 <br>F.2d at 47. In such circumstances, a reviewing court may attribute <br>special significance to the party's eschewal of a continuance and <br>assume that the party did not require additional time to adjust his <br>litigation strategy. See United States v. Sepulveda, 15 F.3d 1161, <br>1178 (1st Cir. 1993). <br> This case fits within that taxonomy. Faigin does not <br>explain in any detail what portions of Kelly's loss computations <br>were not fully calculable from the materials already in his <br>possession. This fact, coupled with the failure to seek a <br>continuance, disarms the complaint of unfair surprise. See In re <br>United States, 158 F.3d 26, 32 n.3 (1st Cir. 1998). <br> G. The Denial of Rebuttal. <br> Faigin faults the district court for refusing to allow <br>him to present rebuttal testimony. The principal objective of <br>rebuttal is to permit a litigant to counter new, unforeseen facts <br>brought out in the other side's case. See La Esperanza de P.R., <br>Inc. v. Perez y Cia de P.R., Inc., 124 F.3d 10, 20 n.6 (1st Cir. <br>1997); Lubanski v. Coleco Indus., Inc., 929 F.2d 42, 47 (1st Cir. <br>1991). The decision to allow or foreclose rebuttal evidence rests <br>squarely within the informed discretion of the district court. See <br>United States v. LiCausi, 167 F.3d 36, 52 (1st Cir. 1999); see also <br>Fed. R. Evid. 611(a) (confirming the trial judge's authority over <br>the order of proof). <br> Here, Faigin wanted rebuttal for two purposes. First, he <br>wished to rebut the claim that Kelly had suffered investment losses <br>of roughly $800,000. See supra Part II(F). He proposed to do so <br>by eliciting testimony from an accounting expert that the <br>investments had yielded substantial tax benefits (which offset, at <br>least to some extent, their lack of economic success). This <br>proffer was too late. Faigin had the burden of proving that <br>Kelly's statements were false. He knew that the statements' <br>truthfulness depended, at least in part, on the quality of the <br>investments. He also knew through pretrial discovery that this <br>aspect of the case would be hotly contested. Indeed, Faigin called <br>Kelly during his case in chief and inquired pointedly about the <br>investment losses. Faigin likewise pursued his "tax benefit" <br>theory during his case in chief. Thus, Faigin had enough notice of <br>the dimensions of the battlefield that he could and should have <br>brought in his heavy artillery and called his expert prior to <br>resting. He did not do so. <br> In this setting, the district court did not abuse its <br>discretion in denying rebuttal. When a party knows that a <br>contested matter is in the case, yet fails to address it in a <br>timely fashion, he scarcely can be heard to complain that the trial <br>court refused to give him a second nibble at the cherry. See <br>Lubanski, 929 F.2d at 47 (upholding the denial of rebuttal when the <br>proffered rebuttal evidence was available to the plaintiff during <br>her case in chief and the testimony she sought to rebut was not <br>unexpected). This principle has particular bite where, as here, <br>nothing new or unanticipated surfaced during the defense case that <br>even arguably changed the topography of the battlefield. <br> Faigin's other basis for rebuttal is of a different <br>stripe. He says that he desired to take the stand to rebut the <br>testimony of Ron Springs, a former client, and that the court erred <br>in not allowing rebuttal for this limited purpose. Because this <br>plaint possesses a patina of plausibility, we recount the relevant <br>circumstances. <br> Springs testified at the trial by way of a videotaped <br>deposition. In anticipation of Kelly's introduction of this <br>evidence, Faigin's counsel sought to have Faigin testify during his <br>case in chief about inconsistent statements made by Springs. The <br>court sustained Kelly's objection on the ground that Springs' <br>testimony had not yet been received. At the same time, however, <br>the court told Faigin that he would be allowed to delve into those <br>statements on rebuttal. <br> After the defense rested (presenting, inter alia, <br>Springs' deposition testimony), Faigin's counsel asked that Faigin <br>be permitted to take the stand "for ten minutes" in rebuttal and <br>referred obliquely to the court's earlier commitment. The court <br>denied the request on the ground that, since Faigin had testified <br>for eight days, the testimony likely would be repetitive. Faigin <br>neither made an offer of proof at that point nor identified the <br>particular statements that he wished to impeach. <br> We conclude that Faigin's failure to make an appropriate <br>offer of proof eviscerates his claim. See Fed. R. Evid. 103(a)(2) <br>(dictating that an assignment of error may not be predicated upon <br>a ruling that excludes evidence unless, inter alia, "the substance <br>of the evidence was made known to the court by offer or was <br>apparent from the context within which questions were asked"). <br>After all, "[i]t is a bedrock rule of trial practice that, to <br>preserve for appellate review a claim of error premised on the <br>exclusion of evidence, the aggrieved party must ensure that the <br>record sufficiently reflects the content of the proposed evidence." <br>Williams, 146 F.3d at 49. In this case, when the defense rested <br>and Faigin's counsel sought permission to call Faigin in rebuttal, <br>the court asked how he intended to rebut Kelly's witnesses. The <br>lawyer merely restated the question: "I'd like him to rebut the <br>charges made by those players in [Kelly's] case." This falls <br>several leagues short of identifying the substance of the proposed <br>evidence. See Earle v. Benoit, 850 F.2d 836, 848 (1st Cir. 1988). <br>Since Faigin flouted a "bedrock rule," he must endure the penalty. <br> Faigin attempts an end run around this seemingly <br>inevitable conclusion. While admitting that he did not make a <br>contemporaneous offer of proof, he says that his attorney <br>adequately informed the court of the substance of the proposed <br>rebuttal more than three weeks earlier, when he prematurely sought <br>to have his client testify about Springs' statements. Leaving the <br>time lag to one side, the record belies this claim. It shows that <br>Faigin's lawyer mentioned the possibility of prior inconsistent <br>statements at that time, but did not elaborate in any way on the <br>nature of the purported inconsistencies. Vague generalizations are <br>insufficient to effect compliance with Rule 103(a)(2). See James <br>v. Bell Helicopter Co., 715 F.2d 166, 175 (5th Cir. 1983). <br> H. Jury Instructions. <br> Finally, Faigin strives to persuade us that the trial <br>court's jury instructions were thrice deficient. The rules of <br>decision are uncontroversial. "The trial court's refusal to give <br>a particular instruction constitutes reversible error only if the <br>requested instruction was (1) correct as a matter of substantive <br>law, (2) not substantially incorporated into the charge as <br>rendered, and (3) integral to an important point in the case." <br>Elliott v. S.D. Warren Co., 134 F.3d 1, 6 (1st Cir. 1998) (quoting <br>United States v. DeStefano, 59 F.3d 1, 2 (1st Cir. 1995)). <br>Similarly, the giving of an instruction is reversible error only if <br>it (1) was misleading, unduly complicating, or incorrect as a <br>matter of law, and (2) adversely affected the objecting party's <br>substantial rights. See Levinsky's, Inc. v. Wal-Mart Stores, Inc., <br>127 F.3d 122, 135 (1st Cir. 1997). Applying these tenets, we <br>discern no error. <br> First and foremost, we deem Faigin's challenge <br>procedurally defaulted. A party cannot assign error to an aspect <br>of the judge's jury instructions unless that particular claim of <br>error has been noted by means of a contemporaneous objection given <br>at the appointed time (i.e., at the end of the charge, but before <br>the jury retires to deliberate). See Campos-Orrego, 175 F.3d at <br>98; see also Fed. R. Civ. P. 51. When put to his mettle, it is the <br>appellant's burden to establish that he has preserved such a claim <br>of error and, relatedly, to furnish the court of appeals with so <br>much of the record of the proceedings below as is necessary to <br>enable informed appellate review. See Campos-Orrego, 175 F.3d at <br>93; Moore v. Murphy, 47 F.3d 8, 10 (1st Cir. 1995); see also Fed. <br>R. App. P. 10. When an appellant dances around these <br>responsibilities, he must pay the piper. <br> This is such a case. Faigin failed to supply a <br>transcript of the Rule 51 sidebar conference. This omission <br>obstructs our view of what transpired below. We cannot tell what <br>specific objections, if any, were presented to the district court, <br>whether they were timely, or how the court responded. Faigin's <br>failure to supply us with the raw material that would illuminate <br>these points supports a presumption that none of his challenges to <br>the jury instructions were properly preserved. <br> We hasten to add that, even if Faigin's assaults on the <br>charge were appropriately before us, they would fail. His initial <br>lament relates to the court's failure to instruct the jury that <br>defamation is a personal and individual claim. Faigin presents no <br>independent argumentation in support of this attack, but, rather, <br>links it to his assertion that the court erred in admitting <br>evidence of what he terms "vicarious liability." Because that <br>assertion lacks force, see supra Part II(E)(1), the linked claim of <br>instructional error collapses of its own weight. <br> Faigin's next grievance pertains to an instruction given <br>by the court on the roles and duties of corporate officers, <br>directors, and attorneys. He does not criticize the contents of <br>the instruction, but contends that the law of fiduciary duties was <br>immaterial in this case. Because this claim hinges on his <br>unsuccessful challenge to the admission of "vicarious liability" <br>evidence and on his rejected "judicial estoppel" argument, see <br>supra Part II(E)(2), it, too, collapses. <br> Faigin's final remonstrance concerns the trial court's <br>decision not to give an instruction on presumed damages. But the <br>jury never reached the question of damages. Hence, any error in <br>this regard necessarily was harmless. <br>III. CONCLUSION <br> We need go no further. In law, as in football, the <br>number of passes attempted means less than the record of passes <br>completed and touchdowns scored. Here, Faigin's passing attack, <br>though prolific, lacks accuracy, and, in all events, never crosses <br>the goal line. For aught that appears, Faigin lost a hotly- <br>contested game played with scrupulous attention to the rules under <br>the watchful eyes of an attentive referee. Because we descry no <br>trace of significant legal error, the district court's judgment <br>will be <br> <br>Affirmed.</pre>
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