Janson et al v. LegalZoom.com, Inc.

Filing 173

SUGGESTIONS in opposition re 147 MOTION in limine Regarding Evidence of No Damage to the Class 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) 147 ) (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. 147) REGARDING ANY EVIDENCE FROM
LEGALZOOM.COM THAT THEY ARE NOT DAMAGING ANYONE AND ANY
EVIDENCE REGARDING THE VALIDITY OF LEGALZOOM.COM’S DOCUMENTS
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine Regarding Any Evidence from LegalZoom.com That They Are Not
Damaging Anyone and Any Evidence Regarding the Validity of LegalZoom.com’s Documents
(“Motion 147,” Doc. 147), states as follows:
Plaintiffs correctly note that evidence that is irrelevant is inadmissible. Fed. R. Evid.
402. Relevant evidence, of course, is admissible. Id. Relevant evidence is “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
(emphasis added). 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.

Levine, 477 F.3d at 603.

Generally, under Rule 403, courts should favor admission. Id.; Block v. R.H. Macy & Co., 712
F.2d 1241, 1244 (8th Cir. 1983).
In arguing that LegalZoom should be barred from presenting relevant evidence related to
whether the company’s forms are valid or have damaged anyone, Plaintiffs cite an Arkansas case
regarding a personal injury claim in connection with a railroad accident. Wright v. Ark. & Mo.
R.R. Co., 574 F.3d 612, 614 (8th Cir. 2009). The case Plaintiffs cite has little application to the
case at bar. Further, the case Plaintiffs cite actually supports LegalZoom’s position. In Wright,
the Eighth Circuit held that the district court did not abuse its discretion when it admitted
relevant evidence. 574 F.3d at 619.
Here, as in Wright, the trial court should admit the relevant evidence in question. One of
the central facets of this case is the “duty to strike a workable balance between the public’s
protection and the public’s convenience.” In re First Escrow, Inc., 840 S.W.2d 839, 844 (Mo.
banc 1992), citing Hulse v. Criger, 247 S.W. 2d 855 (Mo. 1952).
Indeed, in the Court’s Order granting in part and denying in part LegalZoom’s Motion for
Summary Judgment (“Order”), the Court cited the “risk of the public being served in legal
matters by ‘incompetent or unreliable persons’” as a consideration in weighing whether
LegalZoom engages in the unauthorized practice of law. Order at 20 (quoting Hulse, 247
S.W.2d at 858). The Court indicated that the very purpose of unauthorized practice of law
statutes is “to make sure that legal services required by the public, and [e]ssential to the
administration of justice, will be rendered by those who have been found by investigation to be
properly prepared to do so . . . .” Id.
Given the weight the Court placed on the public policy underlying Missouri’s UPL
statute, and given that the public policy in question is the “risk . . . of ‘incompetent or unreliable

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persons’” selling legal documents, evidence that the validity of LegalZoom’s documents is not
— and has not been — challenged is highly relevant. Further, evidence that no individuals are
claiming they were damaged by LegalZoom’s documents strikes at the heart of the question of
whether LegalZoom is “incompetent or unreliable.” Hulse, 247 S.W.2d at 858.
In addition to this motion in limine, Plaintiffs also have filed motions to exclude evidence
or argument that LegalZoom’s customers are satisfied and that LegalZoom’s products are not
defective (Doc. 163) and a motion seeking to bar LegalZoom customers who have opted out of
the class action lawsuit from testifying (Doc. 160). Plaintiffs’ shotgun approach underscores
their focus on a hyper-literal interpretation of the UPL statute.

But the interpretation of

Missouri’s UPL statute does not stop, dictionary in hand, with the literal text. Rather, “[s]uch
statutes are merely in aid of, and do not supersede or detract from, the power of the judiciary to
define and control the practice of law.” Eisel v. Midwest BankCentre, 230 S.W.3d 335, 338-39
(Mo. banc 2007). Given the public policy underlying the state’s UPL statute in the first place, it
is critical that evidence of LegalZoom’s lack of harm be included in the record of this case.
CONCLUSION
For the reasons set forth above, LegalZoom respectfully requests that the Court deny
Plaintiffs’ Motion in Limine Plaintiffs’ Motion in Limine Regarding Any Evidence from
LegalZoom.com That They Are Not Damaging Anyone and Any Evidence Regarding the
Validity of LegalZoom.com’s Documents.

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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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