Janson et al v. LegalZoom.com, Inc.

Filing 110

REPLY SUGGESTIONS to motion re 86 MOTION for order Excluding Expert Testimony filed by David T. Butsch on behalf of Plaintiffs Gerald T. Ardrey, C & J Remodeling LLC, Chad M Ferrell, Todd Janson. (Related document(s) 86 ) (Butsch, David)

IN UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TODD JANSON, et al., on behalf of
themselves and on behalf of all others
similarly situated,

Plaintiffs,
v.
LEGALZOOM.COM, INC.

Defendant.

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Case No. 2:10-cv-04018-NKL

Plaintiffs’ Reply Suggestions in Support of
Motion to Exclude Expert Testimony
I.

Introduction

The proposed “expert” testimony of Professor Burnele Venable Powell should be
excluded because it invades the province of the Court and is irrelevant. While LegalZoom asserts
that Professor Powell’s testimony will assist the jury in understanding the evidence and
determining the facts, the opposite is true. If permitted to testify, Professor Powell will confuse
the jury as to what facts are to be decided and what law is to be applied to the case.
II.

Argument

As some length, LegalZoom argues that Professor Powell’s historical analysis of the
regulation of the practice of law should be admitted to “help the jury understand the evidence.”
(Docket No. 103, Sug. in Opp. pg. 9). The report reflects, however, that the historical
information is presented not to assist the jury in understanding the evidence, but only to bolster
Professor Powell’s ultimate legal opinion that “no computer can practice law” and “no computer-

based delivery process falls within the scope of activities that have been historically been
understood to be the practice of law.” (Report at 2). The historical information is not offered to
help the jury understand the evidence, but to argue to the jury that because some legal self-help
aids have been considered legal in the past, LegalZoom’s conduct is therefore legal as well. This
is precisely the type of legal-opinion evidence forbidden by Rule 702.
Underscoring the fact that Professor Powell will be offering opinions on the law,
LegalZoom suggests that jurors will benefit from Professor Powell’s comparison of the blank
forms from the divorce kit in Thompson to LegalZoom’s use of online questionnaires. (Docket
No. 103, Sug. in Opp. pg. 10). The reason for the comparison is obvious. LegalZoom will argue,
through Professor Powell, that LegalZoom’s conduct is similar to that of the divorce kit seller in
Thompson, and is therefore lawful. While certainly an appropriate subject for a legal
memorandum, such legal conclusions- the application of law to facts- is inadmissible because it
does not assist the trier of fact, but, instead, impermissibly invades the role of the court. Marx &
Co. Inc. v. Diners’ Club Inc., 550 F.2d 505, 510 (2nd Cir. 1977) (“such testimony amounts to no
more than an expression of the [witness’s] general belief as to how the case should be decided”
(citing McCormick on Evidence, § 12 at 26-27)).
If LegalZoom’s position on the testimony of Professor Powell were taken to its logical
conclusion, law professors could opine before juries about how previous cases were decided and
how the case before the jury should, in their opinion, be determined. A tort professor, called by a
plaintiff in a personal injury suit, might testify about the historical development of proximate
causation, and the meaning of the decision in Palsgraf v. Long Island Railroad Co., 162 N.E. 99
(1928). The professor could suggest to the jury that the chain of causation in Palsgraf compares
favorably to the facts of the case to be decided and that therefore the plaintiff should prevail.
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While such testimony would certainly be absurd, it is no less absurd than Professor Powell
telling a jury that the facts in the Thompson case bear a strong resemblance to the conduct of
LegalZoom.
Curiously, LegalZoom relies upon the decision in Police Ret. Sys. of St. Louis v. Midwest
Advisory Serv., 940 F.2d. 351 (8th Cir. 1991), for the proposition that an expert may opine on the
meaning of a law. (Docket No. 103, Sug. in Opp. pg. 13). However, the Eighth Circuit held
precisely the opposite, concluding a former official of the Securities and Exchange Commission
should not have explained to the jury the meaning of the Securities Exchange Act of 1934:
This was error. Explaining the law is the judge's job. [The expert]
Pickard's extensive law-related expert testimony allowed him to
usurp the judge's place. And from that vantage, the System urges,
Pickard improperly swayed the jury's decision on the § 28(e)
question.
Id. at 357. While finding the error was harmless, the court noted that a single evidentiary error in
the context of a nine week trial was not sufficient for reversal. Id. In any event, this decision
lends no support whatsoever to LegalZoom’s position.1
Likewise, the decision in Metropolitan St. Louis Equal Housing Opportunity Council v.
Gordon A. Gundaker Real Estate Co., Inc., 130 F. Supp. 2d 1074 (E.D. Mo. 2001), also relied
upon by LegalZoom, does not lend support to its position. In Gundaker, a real estate company
was sued under the Fair Housing Act for steering prospective home buyers to particular
neighborhoods because of their race. Id. at 1078. The court found that the defendant’s expert, a
real estate professional, could testify as to professional and ethical standards followed by real
estate agents in Missouri. Id. at 1092. The court specifically noted: “[h]e offers no opinion, legal
or otherwise, as to what constitutes compliance with state or federal fair housing laws.” Id. Thus,
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Notably, the Eighth Circuit commented negatively on the trend in some courts to allow experts to testify on
legal issues. “We cannot agree that the trend is a good one.” 940 F.2d at 357.

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in Gundaker, the proffered witness offered no opinion as to what constitutes compliance with
law.
Here, however, unlike Gundaker, the thrust of the proposed expert’s testimony is that the
LegalZoom is not violating the law:
For the reasons set forth below, I conclude that Plaintiffs’
contention is erroneous: No computer (or owner of a computer)
can practice law or render a legal opinion by virtue of providing a
mechanism for an individual to record self-generated information.
(Report at 2). Because Professor Powell’s testimony is, in essence, his opinion that LegalZoom is
not breaking the law. it should not be presented to the jury.
LegalZoom also cites a bankruptcy case in which a law professor testified that a
bankruptcy law firm was engaged in the unlawful practice of law. In re Brown, No. 09-44254,
2011 WL 477822 (Bankr. W.D. Mo. Feb. 7, 2011). In Brown, the bankruptcy trustee sought
sanctions against a law firm for engaging in the unlawful practice of law, for unreasonable fees,
and for failing to fully disclose their involvement in the bankruptcy case. Id. at *2. The professor
opined at a hearing on sanctions that the law firm was practicing law in its pre-filing
consultations with the debtor. Id. The Brown court did not consider the admissibility of such
testimony, as it was not challenged by the law firm. Furthermore, the testimony was not
presented to a jury, but to a judge in the context of a motion hearing. Simply stated, the Brown
decision is not authority on the question of whether experts may testify to juries about the law.
LegalZoom suggests that Professor Powell should be permitted to testify because lawyers
are regularly allowed to testify as to the practices and standards applicable to their profession.
(Docket No. 103, Sug. in Opp. pg. 15). Certainly, in the context of a legal malpractice action,
such testimony may be necessary to establish the requisite standard of care. See Bross v. Denny,
791 S.W.2d 416, 421 (Mo. App. 1990). Here, however, plaintiffs do not claim that LegalZoom
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breached a professional standard imposed on lawyers. There is no professional standard to be
established against which LegalZoom’s conduct is to be measured. Rather, the inquiry is whether
LegalZoom engaged in the law business by (1) drawing or procuring or assisting in the drawing
(2) for a valuable consideration (3) any paper, document or instrument affecting or relating to
secular rights. RSMo. § 484.010(2). Professor Powell’s historical analysis and opinions about the
regulation of the practice of law do not relate to these determinations.
Furthermore, Professor Powell’s impressions of his own interactions with the LegalZoom
website should be excluded as violating Rule 702 and irrelevant. He opines that his LegalZoom
process was “less expensive” than anticipated and that he “understood he was not engaging the
services of a lawyer.” (Report at 17). He recites the disclaimer on the website proclaiming that
“LegalZoom cannot provide legal advice.” Id. Professor Powell’s subjective impressions of his
interaction with the Website, while perhaps helpful in an advertising campaign, will not help the
jury understand the evidence or determine a fact in issue. Instead, his opinions are simply a
means to argue to the jury that LegalZoom’s conduct is not the practice of law. Argument in the
guise of opinion should be excluded.

V.

Conclusion
Because Professor Powell’s proposed testimony is legal argument dressed as expert

opinion, will not assist the trier of fact, improperly invades the role of this Court, and is
irrelevant, the Court should exclude him from providing testimony at trial.

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Edward D. Robertson, Jr., # 27183
Mary Doerhoff Winter, # 38328
BARTIMUS, FRICKLETON,
ROBERTSON & GORNY
715 Swifts Highway
Jefferson City, MO 65109
573.659.4454, 573.659.4460 (fax)
[e-mail],
[e-mail]

/s/ David T. Butsch
David T. Butsch, # 37539
James J. Simeri, #52506
BUTSCH SIMERI FIELDS LLC
231 S. Bemiston Ave., Ste. 260
Clayton, MO 63105
314.863.5700, 314.863.5711 (fax)
[e-mail]
[e-mail]

Timothy Van Ronzelen, #44382
Matthew A. Clement, #43833
Kari A. Schulte, #57739
COOK, VETTER, DOERHOFF &
LANDWEHR, PC
231 Madison
Jefferson City, Missouri 65101
573.635.7977, 573.635.7414 (fax)
[e-mail]
[e-mail]
[e-mail]

Randall O. Barnes, #39884
RANDALL O. BARNES & ASSOCIATES
219 East Dunklin Street, Suite A
Jefferson City, Missouri 65101
573.634.8884, 573.635.6291 (fax)
[e-mail]

Steven E. Dyer, #45397
LAW OFFICES OF STEVEN DYER
10850 Sunset Office Drive, Ste. 300
St. Louis, MO 63127
314.898.6715
[e-mail]
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I certify that on May 12, 2011, I filed the foregoing with the Clerk of the Court using the
CM/ECF system. The system sent notification of this filing to the following:
Party

Counsel
Robert M. Thompson
James T. Wicks
BRYAN CAVE LLP
One Kansas City Place
1200 Main Street, Ste. 3500
Kansas City, MO 64105
816.374.3200, 816.374.3300 (fax)

Defendant
LegalZoom.com, Inc.

John Michael Clear
Michael Biggers
James Wyrsch
BRYAN CAVE LLP
One Metropolitan Square, Ste. 3600
211 N. Broadway
St. Louis, MO 63102
314.250.2000, 314.259.2020 (fax)

/s/ David T. Butsch

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