Janson et al v. LegalZoom.com, Inc.

Filing 156

MOTION in limine to Exclude Improper Opinion Evidence from John Smallwood filed by Timothy W. Van Ronzelen on behalf of All Plaintiffs. Suggestions in opposition/response due by 8/19/2011 unless otherwise directed by the court. (Attachments: # 1 Exhibit)(Van Ronzelen, Timothy)

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’ MOTION IN LIMINE TO EXCLUDE IMPROPER
OPINION EVIDENCE FROM JOHN SMALLWOOD
Come now, Plaintiffs, by and through counsel, and for their Motion in Limine to exclude
improper opinion evidence Plaintiffs anticipate LegalZoom.com (“LegalZoom”) will attempt to
elicit from witness John Smallwood states as follows:
I. Introduction
The crux of this case is whether LegalZoom engages in the unauthorized practice of law
in Missouri by violating §§484.010-.020, RSMo. Accordingly, much of the discovery in this
case centered on the process by which documents are created via the LegalZoom website. In that
vein, Plaintiffs deposed several LegalZoom corporate representatives about the process. In
addition, Plaintiffs properly and timely disclosed a witness named John Smallwood, who had
several legal documents prepared for him via the LegalZoom website. More specifically, Mr.
Smallwood obtained a will, limited liability company documents, a real estate deed and a
trademark from LegalZoom. While providing the information to LegalZoom to obtain the
documents, Mr. Smallwood (at the request of Plaintiffs’ counsel) captured the various computer
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screens that appeared through the process of obtaining the documents so that the process by
which documents are created by LegalZoom may be fully demonstrated. .
Mr. Smallwood owns a computer repair company in Jefferson City, but was not disclosed
as an expert by any party in this case. He is merely a fact witness as to how documents are
created by LegalZoom from the customer’s perspective and the process by which the necessary
information is gathered. Mr. Smallwood has no degree or certifications in the computer field and
is not “licensed” in “Microsoft programs and that sort of thing.” See, Smallwood depo. 15:1725, attached as Exhibit 1. He also has no technical knowledge of how the LegalZoom computer
process works and has never seen the Legalzip software, which is the software that LegalZoom
employs to implement the branching questionnaire process and create the final legal documents.
Id. at 107:18 – 108:6.
In his deposition, counsel for LegalZoom attempted to elicit improper opinion testimony
from Mr. Smallwood in the form of how the LegalZoom process technically works and whether
in general computers could give “advice” or “think.” See, e.g., Exhibit 1, 95:7 – 100:4 and
108:13-23. As set forth below, such testimony is improper under Federal Rules of Evidence 701
and 702 and is irrelevant under Federal Rule of Evidence 401. Alternatively, it is inadmissible
under Federal Rule of Evidence 403, as it will simply confuse the jury about the true issues in
this case and cause a waste of time and undue delay in the presentation of evidence.
II. Argument
Pursuant to Federal Rule of Civil Procedure 26(a)(2)(A), “a party must disclose to the
other parties the identity of any witness it may use at trial to present evidence under Federal Rule
of Evidence 702, 703 or 705.” No party has disclosed Mr. Smallwood as an expert witness.
Thus, any opinions LegalZoom may attempt to elicit regarding how computer software may

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work or whether computers can “think” or give “advice” are improper for that reason alone.
Further, such opinions do not comply with the requirements of Federal Rule of Evidence
702 which governs the admissibility of expert testimony. Under Rule 702, an expert opinion is
only admissible if “(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.” Mr. Smallwood testified that has no degrees or
certifications and is not licensed in any software programs. See, Exhibit 1, 15:17-25. More
importantly, he has never seen the Legalzip software LegalZoom uses and has no knowledge of
how it works other than that he answered questions regarding the legal documents he was having
prepared. Id. at 107:18-108:6. As such, there is simply no foundation for him to opine about
what the Legalzip software or LegalZoom process is doing with the answers he and the class
members give to the questions they are asked by LegalZoom.
Further, such opinions are also improper under Federal Rule Evidence 701 relating to
opinions of lay witnesses. Under Rule 701, a lay witness may testify to opinions or inferences,
but only if they are “(a) rationally based on the perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based
on scientific, technical or other specialized knowledge within the scope of Rule 702.” In
addition, “it has always been the rule that lay opinion testimony may be elicited only if it is
based on the witness’s first-hand knowledge or observations.” Dijo, Inc. v. Hilton Hotels, Corp.,
351 F.3d 679, 685 (5th Cir. 2003).
The attempted elicitation of opinions from Mr. Smallwood regarding what the Legalzip
does or does not do are inadmissible under Rule 701 for several reasons. First, Mr. Smallwood
has never seen the Legalzip software and has no knowledge of how it technically works. Thus, it

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is not based on his first-hand knowledge. Second, such opinions could not be based on Mr.
Smallwood’s rationale perception, as he has never seen the software. Third, any assumption he
may make on how it works, would necessarily be based on technical or other specialized
knowledge, which would require the opinion be admissible pursuant to FRE 702. Therefore, the
opinions are not admissible under Rule 701 either.
Further, the opinion testimony LegalZoom attempted to elicit from Mr. Smallwood about
whether he believes computers can “think” or render “advice” fail for the same reasons. In
addition, such testimony is inadmissible as it is irrelevant under Federal Rules of Evidence 401
and 402. Pursuant to Rule 401, evidence is only relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Whether in Mr. Smallwood’s opinion
computers can “think” or give “advice” simply does not have anything to do with whether
LegalZoom violates Missouri law by “drawing or . . . procuring of or assisting in the drawing for
a valuable consideration” of legal documents as set forth in § 484.010.2 – 020, RSMo. That is
the crux of this case. Mr. Smallwood’s beliefs as to what a computer does or does not do in
terms of thinking or giving advice will not assist in the determination of any fact of consequence.
Accordingly, it fails the relevancy test of Rule 401.
Finally, even if the opinion were of some slight relevance, it is inadmissible under
Federal Rule of Evidence 403, as its slight probative value is substantially outweighed by the
confusion it might create with the jury. If LegalZoom is allowed to elicit such general opinions
from Mr. Smallwood, Plaintiffs would have to be allowed to probe even further into the code
underlying the questionnaire process at LegalZoom and provide the jury with an extremely time
consuming explanation of why the way LegalZoom set up the process, the computer is making

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decisions about what to include or not to include in the particular legal document. Such opinions
would clearly cause the undue delay and may result in the needless presentation of cumulative
evidence which is prohibited by Federal Rule of Evidence 403.
III. Conclusion
For the reasons stated herein, LegalZoom should be prohibited from eliciting opinion
evidence from Mr. Smallwood as to what the LegalZoom process does and whether computers
can “think” or give “advice” in a general sense.
Respectfully submitted,

____/s/Timothy VanRonzelen
____
Timothy Van Ronzelen, #44382
Matthew A. Clement, #43833
Kari A. Schulte, #57739
COOK, VETTER, DOERHOFF & LANDWEHR
231 Madison
Jefferson City, Missouri 65101
Telephone: [phone]
Facsimile: 573-635-7414
[e-mail]
[e-mail]
[e-mail]
and
Edward D. Robertson, Jr., # 27183
Mary Doerhoff Winter, # 38328
BARTIMUS, FRICKLETON, ROBERTSON
& GORNY
715 Swifts Highway
Jefferson City, MO 65109
Telephone: [phone]
Facsimile: 573 659-4460
[e-mail]
[e-mail]

David T. Butsch, # 37539
James J. Simeri, #52506
BUTSCH SIMERI FIELDS LLC
231 S. Bemiston Ave., Ste. 260
Clayton, MO 63105
Telephone: [phone]
Facsimile: 314-863-5711
[e-mail]
[e-mail]

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Randall O. Barnes, #39884
RANDALL O. BARNES & ASSOCIATES
219 East Dunklin Street, Suite A
Jefferson City, Missouri 65101
Telephone: [phone]
Facsimile: 573-635-6291
[e-mail]

Steven E. Dyer, #45397
LAW OFFICES OF STEVEN DYER
10850 Sunset Office Drive, Ste. 300
St. Louis, MO 63127
Telephone: [phone]
[e-mail]

ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I certify that on August 2, 2011, 2011, I served this paper upon the following via this
Court’s ECF system:

Party

Counsel
Robert M. Thompson
James T. Wicks
Christopher C. Grenz
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/ Timothy VanRonzelen

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