Janson et al v. LegalZoom.com, Inc.

Filing 172

SUGGESTIONS in opposition re 146 MOTION in limine Regarding LegalZoom's Business Model filed by James T. Wicks on behalf of Defendant LegalZoom.com, Inc.. Reply suggestions due by 8/26/2011 unless otherwise directed by the court (Related document(s) 146 ) (Wicks, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TODD JANSON, GERALD T. ARDREY, CHAD M.
FERRELL, and C & J REMODELING LLC, on behalf of
themselves and on behalf of all others similarly situated,
Plaintiffs,
Case No. 2:10-cv-04018-NKL
v.
LEGALZOOM.COM, INC.,
Defendant.

SUGGESTIONS IN OPPOSITION TO PLAINTIFFS’
MOTION IN LIMINE (DOC. NO. 146) REGARDING
STATEMENTS OR ARGUMENTS THAT LEGALZOOM.COM’S BUSINESS
OPERATES IN OR IS APPROVED IN OTHER STATES
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine Regarding Statements or Arguments That LegalZoom.com’s
Business Operates in or is Approved in Other States (“Motion 146,” Doc. 146), states as follows:
Plaintiffs’ broad accusation that other states’ laws and regulatory approvals are not
relevant is simply untrue. Missouri courts have frequently examined and weighed the opinions
and practices of other states in deciding whether a party is engaged in the unauthorized practice
of law. See e.g., In re Mid-America Living Trust Assocs., Inc., 927 S.W.2d 855, 860-64 (Mo.
banc 1996) (analyzing numerous decisions of other states); In re Thompson, 574 S.W.2d 365,
367-69 (Mo. banc 1978) (same). The fact that other states have reviewed and approved the
practices of LegalZoom is therefore relevant to whether LegalZoom engages in the unauthorized
practice of law.

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As Plaintiffs acknowledge, the court has broad discretion in determining the admissibility
of evidence. See United States v. Levine, 477 F.3d 596, 603 (8th Cir. 2007). However, the
Federal Rules of Evidence favor admissibility. Id. The general rule under Rule 403 is that the
balance should be struck in favor of admission. Id.; Block v. R.H. Macy & Co., 712 F.2d 1241,
1244 (8th Cir. 1983).
Furthermore, as noted by the Court in Luce v. United States, 469 U.S. 38, 41 (1984), “[a]
reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a
factual context.” For this reason, while motions in limine are widely used, many courts have
expressed skepticism when faced with broadly drawn motions in limine.

See Sperberg v.

Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.) (“Orders in limine which exclude
broad categories of evidence should rarely be employed. A better practice is to deal with
questions of admissibility . . . as they arise.”), cert. denied, 423 U.S. 987 (1975); Insignia Sys.
Inc. v. News Am. Mktg. In-Store, Inc., No. 04-4213, 2011 U.S. Dist. LEXIS 10740, at *12
(D. Minn. Feb. 3, 2011) (same); Landers v. Nat’l R.R. Passenger Corp., No. 00-2233, 2002 U.S.
Dist. LEXIS 7851, at *7-8 (D. Minn. April 26, 2002) (same); EEOC v. Fargo Assembly Co., 142
F. Supp. 2d 1160, 1161 (D.N.D. 2000) (same).
While it is true that the court may exclude evidence that confuses the issues and leads to
litigation of collateral issues, Firemen’s Fund Insurance Co. v. Thien, 63 F.3d 754, 758 (8th Cir.
1995), Plaintiffs provide no explanation why evidence that other states have determined that
LegalZoom is not engaged in the unauthorized practice of law would be litigation of collateral
issues. In Thien, the court did not allow a party to submit evidence related to liability in the
accident when the sole issue in the case was whether there was insurance coverage. Id. at 759.
In this case, whether LegalZoom engaged in the unauthorized practice of law is the primary issue

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in this case. Therefore, the jury should be allowed to receive evidence related to the view of
other states that have considered this issue.
While Rule 403 is concerned with unfair prejudice, “[e]vidence that is prejudicial for the
same reason it is probative is not unfairly prejudicial.” Probatter Sports, LLC v. Joyner Techs.,
Inc., No. 05-CV-2045-LRR, 2007 WL 3285799, at *5 (N.D. Iowa Oct. 18, 2007). Plaintiffs
must describe with sufficient particularity why the court should exclude evidence that other
states have determined that LegalZoom is not engaged in the unauthorized practice of law. See
id. at *5, *9. In this case, Plaintiffs fail to describe with sufficient particularity why admitting
this evidence would be unfairly prejudicial.
Indeed, far from describing the prejudice with particularity, Plaintiffs make a broad,
unsubstantiated claim that “those states all have different statutes” (Motion 146 at 2) (emphasis
added). The Supreme Court of Missouri has stated otherwise, noting that “[m]ost other states
have similar, if not identical, rules of conduct.” Mid-America, 927 S.W.2d at 863. Indeed, the
Missouri Supreme Court Rules of Professional Conduct are based on the American Bar
Association Model Rules of Professional Conduct. State v. Wilson, 195 S.W.3d 23, 24 (Mo.
App. 2006) (“the Missouri Supreme Court adopted the ABA Model Rules of Professional
Conduct [(“Model Rules”)] as its own rules to govern the ethics and professional responsibility
of Missouri attorneys”) (citation omitted). The Model Rules have been adopted by numerous
other jurisdictions. In re Coleman, 295 S.W.3d 857, 864 n. 5 (Mo. banc 2009). Plaintiffs have
not identified any specific state rule regarding the unauthorized practice of law that they allege
differs from the Missouri rule in any material way. Plaintiffs have not identified any actual
prejudice to admitting this evidence.

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Finally — and dispositively — plaintiffs’ own Petition refers to an inquiry into
LegalZoom by the North Carolina State Bar.

See Doc. 1-1 at 11 of 40.

By addressing

LegalZoom’s operations in other states in their very pleadings, plaintiffs have opened the door
on the issue of LegalZoom’s business in other states and its approval in those states. Moreover,
in denying LegalZoom summary judgment, the Court read into Missouri law the requirements of
the Florida decision of Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978), in which the
Florida Supreme Court restricted the legal activities of scriveners to secretarial and notary
activities and prohibited “personal legal assistance.” Doc. 145 at 12-13, 19, 21. If plaintiffs are
able to argue that LegalZoom has been the subject of an inquiry by the North Carolina Bar, and
if the Court intends to instruct the jury on a legal standard derived from a state in which
LegalZoom legally operates, it would be manifestly unfair to deny LegalZoom the opportunity to
present evidence regarding its activities — and approval — in states other than Missouri.
Plaintiffs’ motion should therefore be denied.
CONCLUSION
For the reasons set forth above, LegalZoom respectfully requests that the Court deny
Plaintiffs’ Motion in Limine Regarding Statements or Arguments That Legalzoom.com’s
Business Operates in or is Approved in Other States.

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Respectfully submitted,
BRYAN CAVE LLP
By: s/ James T. Wicks
Robert M. Thompson
MO #38156
James T. Wicks
MO #60409
Christopher C. Grenz
MO #62914
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: [phone]
Fax: [phone]
John Michael Clear
MO #25834
Michael G. Biggers
MO #24694
One Metropolitan Square – Suite 3600
211 North Broadway
St. Louis, MO 63102
Tel.: [phone]
Fax: [phone]
Attorneys for LegalZoom.com, Inc.

CERTIFICATE OF SERVICE
I hereby certify that on August 9, 2011, I electronically filed the above and foregoing
with the clerk of court using the CM/ECF system, which will send notice of electronic filing to
all counsel of record.

s/ James T. Wicks

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