Shimer v. Foley9/16/2003
Brode Group, Inc. v. Bowditch & Dewey, 36 Mass. App. Ct. 509, 518 (1994). Thus, Shimer's ability to prove his damages rested, in large part, on introducing the Synthes offer into evidence to show the monetary value he would have derived from the proposed settlement of his underlying dispute with Synthes. The judge, however, deemed Shimer's proof of the Synthes offer inadmissible hearsay.
Shimer argued that the Synthes offer was admissible on several theories, although he initially pressed the operative words doctrine. The judge rejected that theory for two reasons: first, because this case was not a contract action in which the doctrine is most commonly applied, and, second, because, as she understood Shimer's argument, the Synthes offer was to be used for the truth of the matter asserted.
The question, then, is whether evidence of the Synthes offer was admissible in the malpractice action as it would be in an action in which the proposed contract itself was at issue. Had Shimer accepted the offer from Synthes, we would not hesitate to characterize evidence of the offer as proof of operative words used in the making of a contract and therefore not subject to the hearsay rule. In that context, the offer, once communicated to Shimer, would have taken on independent legal significance, giving rise to certain rights and duties between Synthes and Shimer. See Telecon, Inc. v. Emerson-Swan, Inc., 17 Mass. App. Ct. 671, 672-673 (1984); Young, Pollets & Poreda, Evidence § 801.4(a) (2d ed. 1998). See also Tenney v. Foss, 268 Mass. 69, 72-73 (1929); Baldwin's Steel Erection Co. v. Champy Constr. Co., 353 Mass. 711, 715-716 (1968); Liacos, Brodin & Avery, Massachusetts Evidence § 8.2.5 (7th ed. 1999). In a contest between Synthes and Shimer, then, the Synthes offer could appropriately be introduced in evidence through Shimer's own testimony as operative words, not for its truth, but for the fact that Synthes made it and was thus bound by it.
But in much the same fashion, faced with the burden of proof imposed in a legal malpractice proceeding, which amounts to a "trial within a trial," see Fishman v. Brooks, 396 Mass. at 647, Shimer still had to demonstrate the probability that he would have reached a more favorable outcome, here an agreement with Synthes, had FHE exercised adequate skill and care. See, e.g., Poly v. Moylan, 423 Mass. at 145; Van Brode Group, Inc. v. Bowditch & Dewey, 36 Mass. App. Ct. at 518. Though the malpractice suit was not, as the trial judge observed, an action to enforce a contract, Shimer still had the burden of establishing the central issue in the underlying dispute, namely, the existence and terms of the Synthes offer which, but for FHE's negligence, Shimer claims he would have accepted, thereby forming a contract. See Whiteaker v. State, 382 N.W.2d 112, 116 (Iowa 1986) (to prove he was deprived of a favorable settlement due to his attorney's negligence, former client must prove that a firm settlement offer was made and that he and the party against whom his claim was asserted would have reached an agreement).
We conclude that proof of the underlying offer, as proposed by Synthes and rejected by Shimer allegedly in reliance on FHE's advice, was sufficiently integral to his malpractice claim and, on that basis alone, should not have been excluded. In the context of the malpractice proceeding, the offer, once communicated to Shimer, would have taken on such independent legal significance as to exempt it from application of the hearsay rule.
The judge also ruled against the operative words theory of admissibility because Shimer sought to admit the Synthes offer for its truth, or as the judge stated it, for the fact that the of
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