Janson et al v. LegalZoom.com, Inc.

Filing 162

MOTION in limine Motion in Limine to exclude any evidence or argument that LegalZoom does not provide legal advice to its customers filed by David T. Butsch on behalf of All Plaintiffs. Suggestions in opposition/response due by 8/19/2011 unless otherwise directed by the court. (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’ MOTION IN LIMINE TO EXCLUDE EVIDENCE OR ARGUMENT
THAT LEGALZOOM DOES NOT PROVIDE LEGAL ADVICE TO CUSTOMERS
Come now Plaintiffs, by and through counsel, and for their Motion in Limine to exclude
any evidence or argument that LegalZoom does not provide legal advice to its customers, states:
Plaintiffs anticipate, based on arguments asserted by LegalZoom in their summary
judgment papers, that LegalZoom will attempt to introduce evidence or argument before the jury
that LegalZoom does not provide legal advice to its customers and therefore is not engaged in the
unlawful practice of law. Such evidence or argument should be excluded because “[e]vidence
which is not relevant is not admissible.” Fed. R. Evid. 402. Furthermore, such evidence would
mislead and confuse the jury.
In Carpenter v.Countrywide Home Loans, Inc., 250 S.W.3d 697 (Mo. 2008) and Eisel v.
Midwest Bankcentre, 230 S.W.3d 335 (Mo. 2007), the Missouri Supreme Court confirmed that
the preparation of legal documents for compensation by a non-lawyer is actionable under Section
484.020 RSMo. Eisel, 230 S.W.3d at 339; Carpenter, 250 S.W.3d at 700. In both cases, the
plaintiffs contended that mortgage lenders were engaged in the law business, as defined by

Section 484.010.2 RSMo., by charging borrowers for preparation of deeds of trusts, promissory
notes and other documents of legal significance in connection with mortgage loans. 230 S.W.3d
at 336; 250 S.W.3d at 699.
Notably, neither Eisel nor Carpenter involved advice or counseling concerning legal
matters. As in the present case, there was no contention that the defendant was “advising or
counseling for a valuable consideration any person, firm, association, or corporation as to any
secular law” as prohibited by the first portion of Section 484.010.2. Rather, those cases, like the
present case, were premised on the second portion of Section 484.010.2, which prohibits a nonlawyer from “drawing” or “assisting in the drawing for a valuable consideration of any paper,
document or instrument affecting or relating to secular rights.” § 484.010.2 RSMo. In short,
whether LegalZoom gives its customers legal advice is of no significance.
The Eisel and Carpenter decisions made it clear that even in the context of a real-estate
closing where no expectation of legal representation exists, the preparation of a legal document
for a fee by a non-lawyer, i.e., “legal drafting as a business,” is prohibited. Simply stated, for a
violation of §484.010.2 to be established, no inquiry into whether the defendant gave “personal
advice to specific problems to a readily identifiable person” is required.
“‘Relevant evidence’ means evidence having 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.” Fed. R. Evid. 401. “Evidence which is not relevant is not
admissible.” Fed. R. Evid. 402. “A defendant has no right to offer and a jury has no right to
hear inadmissible evidence.” U.S. v. Ceballos, 593 F. Supp. 2d 1054, 1059 (S.D. Iowa 2009).
Whether LegalZoom gave legal advice to its customers has no bearing whatsoever on the factual
determination to be made by the jury concerning whether LegalZoom violated Section 484.020.1

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RSMo.
This court has broad discretion in determining the admissibility of evidence, Fortune
Funding, LLC v. Ceridian Corp., 368 F.3d 985, 990 (8th Cir. 2004), and should exercise its
discretion to exclude evidence or argument concerning whether LegalZoom gave legal advice to
its customers.

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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 August 2, 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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