Janson et al v. LegalZoom.com, Inc.

Filing 121

REPLY SUGGESTIONS to motion re 114 MOTION to strike 90 MOTION for summary judgment , 91 Suggestions in Support of Motion,, 100 MOTION for summary judgment (SEALED) , 101 Suggestions in Support of Motion (Sealed),, Plaintiffs' Motion to Strike L filed by David T. Butsch on behalf of Plaintiffs Gerald T. Ardrey, C & J Remodeling LLC, Chad M Ferrell, Todd Janson. (Related document(s) 114 ) (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 Strike Summary Judgment Facts
I.

Introduction
LegalZoom’s “undisputed facts” 45 through 79 should be stricken because, among other

things, they are not relevant and are not admissible in evidence. While LegalZoom argues that
these “facts” are relevant as demonstrating what is not the practice of law, the facts asserted
concern legal arguments which are for the Court, not a jury, to determine. Because the asserted
facts would not be admissible in evidence at trial, they cannot be submitted in support of a
motion for summary judgment. See Fed R. Civ. P. 56(c)(2) (facts must “be presented in a form
that would be admissible in evidence”).

II.

Argument
A.

The record from a previous lawsuit is irrelevant and not
admissible in evidence.

Relying upon the decision in Eisel v. Midwest BankCentre, 230 S.W.3d 335 (Mo. banc
2007), LegalZoom asserts that the court record from the Thompson case is relevant as
demonstrating how courts previously defined the practice of law. However, the court in Eisel did
not hold that the record from a previous litigation was admissible, but only that a claim for
unauthorized practice “could be defended by showing a conflict between the text [Sec. 484.020]
and activities that this Court has determined to be the authorized practice of law.” Id. at 338-39.
This is clearly a reference to a legal determination by a court and is not a rule concerning the
admissibility of evidence at trial.
Not surprisingly, LegalZoom does not cite any decision in which a court held that the
record from a previous case, claimed to be similar to the pending case, was found to be
admissible in evidence. Simply stated, what occurred in Thompson would not assist the jury in
this case to decide facts concerning LegalZoom’s conduct and is therefore irrelevant.
B.

Professor Powell’s legal opinions are not admissible in evidence.

Professor Powell’s historical commentary on the history of the regulation of the practice
of law and his opinions on how this case should be decided are cannot be admitted into
evidence.1 LegalZoom relies upon the decision in Police Retirement System of St. Louis v.
Midwest Advisory Services, 940 F.2d. 351 (8th Cir. 1991), for the proposition that an expert may
opine on the meaning of a law. (Docket No. 120, Sug. in Opp. pg. 7). However, the Eighth
Circuit held precisely the opposite, concluding a former official of the Securities and Exchange

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See Plaintiffs’ Motion to Exclude Expert Testimony. (Docket No. 86).

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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 to LegalZoom’s position.
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,
in Gundaker, the proffered witness offered no opinion as to what constitutes compliance with
law.
Here, however, unlike Gundaker, the thrust of Professor Powell’s testimony is that
LegalZoom is not violating the law:
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.
(LegalZoom material fact no. 65). Because Professor Powell’s testimony is, in essence, his
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opinion that LegalZoom is not breaking the law, it is not admissible in evidence and therefore
cannot be presented in support of a summary judgment motion.
C.

The availability of standardized legal forms is not relevant to whether
LegalZoom in engaged in the unauthorized practice of law.

LegalZoom argues that the availability of other “self-help tools” available through the
Missouri Bar, Secretary of State or the Supreme Court are relevant as “probative to an
understanding of the historically acceptable legal self-help tools available in Missouri and hence
to the determination of what constitutes the practice of law.” (Sug. In Opp., Docket no. 120, p.
9). However, what legal self-help tools that may be available in Missouri have no bearing upon
LegalZoom’s conduct and are therefore irrelevant and inadmissible. The jury will examine
LegalZoom’s conduct, not the conduct of others.
The sale of blank legal forms is also irrelevant because no such claim is being asserted in
this case. Plaintiffs’ claims do not encompass the sale of blank legal forms filled in by a
customer. As noted in plaintiffs’ suggestions in opposition to LegalZoom’s motion for summary
judgment, plaintiffs do not intend to submit any claims at trial related to LegalZoom’s sale of
blank legal forms. (Docket No. 113, p. 53). For these reasons, LegalZoom’s asserted facts
concerning legal self-help tools should be stricken.
D.

The comments of the FTC and the Antitrust Division of the U.S.
Department of Justice are not admissible evidence and should be
stricken.

LegalZoom suggest that comments by the FTC and the Antitrust Division of the U.S.
Department of Justice regarding the American Bar Association’s Proposed Model Definition of
the Practice of Law, (Facts 45-59), are “factual evidence of the views of relevant industry and
regulatory officials as to the history of UPL statutes and legal self-help tolls like those at issue in
this case.” (Docket No. 120, p. 11); (emphasis in original). While these opinions may constitute
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secondary legal authority, they fail the basic relevance test of Rule 401 in that they do not make
the existence of any fact that is of consequence to the determination of this action more probable
or less probable. See Fed. R. Evid. 401. Because they are not relevant, they should be stricken.
II.

Conclusion
Because the material cited by LegalZoom in paragraphs 45 through 79 cannot be

presented in a form that would be admissible in evidence, plaintiffs request an order striking
paragraphs 45 through 79, and for all other relief that is just.

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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 13, 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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