Janson et al v. LegalZoom.com, Inc.

Filing 174

SUGGESTIONS in opposition re 148 MOTION in limine Regarding Evidence of Disclaimer and/or Waiver 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) 148 ) (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. 148) REGARDING ANY EVIDENCE OF
LEGALZOOM.COM’S DISCLAIMER AND/OR WAIVER THAT IS ON ITS WEBSITE
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine Regarding Any Evidence of LegalZoom.com’s Disclaimer and/or
Waiver That Is On Its Website (“Motion 148,” Doc. 148), states as follows:
Defendant LegalZoom must be allowed to introduce evidence and make argument
regarding the disclaimer and terms of service found on its website. Such evidence is relevant.
Plaintiffs read or agreed to the disclaimer and terms of service; therefore, the evidence has
probative value on issues in this action. More specifically, Plaintiffs testified in depositions that
they understood LegalZoom was preparing their documents (indeed, one Plaintiff — the only
one on the witness list — has testified that he understood a lawyer would draw up his will as a
result of his use of the website). Unless Plaintiffs are foreclosed from introducing evidence on or
presenting argument about their understanding of what LegalZoom does and does not do for its
customers, then evidence of the disclaimer that Plaintiffs read and the terms of service to which

they agreed when they used the LegalZoom website are relevant and should be considered by the
jury.
Plaintiffs contend in Motion 148 that this evidence should be excluded as irrelevant
because “[t]he waiver and/or disclaimer simply has no application or impact on this case.”
Plaintiffs also argue that, even if the evidence is relevant, “the introduction of such evidence
would be extremely confusing to the jury.” Plaintiffs are mistaken on both counts.
I.

Evidence of the Disclaimer and Terms of Service is Relevant to, Among Other
Things, Plaintiffs’ Understanding of LegalZoom’s Services
In support of their argument that evidence of the LegalZoom disclaimer and terms of

service are irrelevant, Plaintiffs rely primarily on Carpenter v. Countrywide Home Loans, Inc.,
250 S.W. 3d 697 (Mo. banc 2008). Plaintiffs assert that Carpenter forecloses any argument that
Plaintiffs have waived their claims against LegalZoom and, therefore, the disclaimer and terms
of service are irrelevant. This assertion misses the mark for the simple reason that LegalZoom
does not contend that Plaintiffs have waived their claims and LegalZoom would not offer
evidence of its disclaimer and terms of service for that purpose. Thus, Plaintiffs’ reliance on
Carpenter, which relates to the voluntary payment defense (which is not present here), is
misplaced. Plaintiffs’ argument that evidence of the LegalZoom disclaimer and terms of service
should be excluded as irrelevant fails because LegalZoom does not contend that Plaintiffs
waived their claims.
Instead, the LegalZoom disclaimer and terms of service are relevant to, and would be
offered to show, what Plaintiffs read or agreed to. The evidence would be offered to rebut those
portions of Plaintiffs’ deposition testimony — which they presumably will repeat at trial — that
concern their understanding of the preparation of documents through their use of LegalZoom’s
website. Plaintiffs have testified that they understood that LegalZoom, not they, prepared those
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documents. This is contrary to the disclaimer they read, the terms of service to which they
agreed — as well as to the actual manner in which customers interact with the LegalZoom
website. Thus, if Plaintiffs are permitted to testify to their understanding, then the disclaimer and
terms of service that they read or agreed to on LegalZoom’s website plainly are relevant and
should be considered by the jury. Plaintiffs’ understanding needs to be considered in light of
what is contained in both Plaintiffs’ contract with LegalZoom — the terms of service on the
website — and the disclaimer found on the website, not in a vacuum.
II.

Plaintiffs Have Made No Showing That Evidence of the Disclaimer and Terms of
Service Would Be Confusing to the Jury
Plaintiffs have made no showing that evidence of the disclaimer and terms of service

would confuse the jury; therefore, Plaintiffs’ “extreme confusion” argument fails. If Plaintiffs
testify about their understanding of the preparation of documents through their use of
LegalZoom’s website, then LegalZoom must be allowed to offer the disclaimer and terms of
service that Plaintiffs read or agreed to, which bear on that understanding. Otherwise, allowing
Plaintiffs to testify about what they understood their contract with LegalZoom to be and what
LegalZoom was doing for them without the jury also seeing and hearing evidence of the
disclaimer and terms of service — what the parties actually agreed that LegalZoom would and
would not do for Plaintiffs — would result in the jury receiving a one-sided, confusing view of
the facts. That result, not the evidence that Plaintiffs seek to exclude, would confuse the jury,
which in turn would unfairly prejudice LegalZoom. Excluding evidence of the LegalZoom
disclaimer and terms of service would be contrary to policy concerns that underlie Rule 403,
Fed. R. Evid.
The two cases that Plaintiffs cite in support of excluding this relevant evidence as
confusing under Rule 403 provide no support for their position. In Firemen’s Fund Insurance
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Co. v. Thien, 63 F.3d 754 (8th Cir. 1995), the Eighth Circuit reviewed the exclusion of a Federal
Aviation Administration report dealing with its investigation of alleged intentional falsification
of records by a pilot. The pilot’s responsibility for the plane crash that resulted in the death of a
passenger was not at issue in the case; instead, the case dealt with whether any potential liability
for the death was covered by insurance.
In affirming the district court’s exclusion of the evidence, the Eighth Circuit explained
that injecting the issue of liability for the death of the passenger into a case involving the
availability of insurance coverage for any potential liability could result in the jury feeling hostile
toward the potentially liable pilot. That hostility could lead them to reach a decision based on
emotion, which would be unfairly prejudicial. The court also feared that admission of the FAA
report would lead to extended and irrelevant litigation of the question of the pilot’s liability,
which “would confuse the jury and waste their time and the court’s.” Id. at 758-59.
Firemen’s Fund could not be more different from this case. Simply put, there is no risk
that the jury in this case would hear of and see the LegalZoom disclaimer and terms of service
and reach an emotional judgment one way or the other. Nor is there any risk that admission of
such evidence would result in unnecessary satellite litigation regarding the disclaimer or terms of
service that would confuse the jury and waste its time.
The other case cited by Plaintiffs also does not support excluding evidence of the
disclaimer and terms of service that Plaintiffs read and agreed to. In Probatter Sports, LLC v.
Joyner Technologies, Inc., No. 05-CV-2045, 2007 U.S. Dist. LEXIS 84779 (N.D. Iowa, Oct. 18,
2007), the court did, as Plaintiffs indicate, note that Rule 403 is concerned with unfair prejudice;
that is, evidence that has an undue tendency to suggest decision on an improper basis. But the
court in Probatter Sports went on to explain that “[e]vidence that is prejudicial for the same

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reason that it is probative is not unfairly prejudicial.” Id. at *17. Plaintiffs do not explain how
allowing the jury to see the LegalZoom disclaimer and terms of service that Plaintiffs read or
agreed to would unfairly prejudice them. And as indicated above, that evidence is certainly
probative.
This Court of course has broad discretion in determining the admissibility of evidence.
United States v. Levine, 477 F.3d 596, 603 (8th Cir. 2007). But Rule 403 favors admissibility;
under “Rule 403 [] the general rule is that the balance should be struck in favor of admission.”
Id. at 603 (quoting United States v. Dennis, 625 F.2d 782, 797 (8th Cir. 1980)); Block v. R.H.
Macy & Co., 712 F.2d 1241, 1244 (8th Cir. 1983). Plaintiffs have shown no reason to exclude
evidence that bears on the issue of what LegalZoom would or would not do for Plaintiffs when
they accessed LegalZoom’s website and decided to use its services to prepare their documents.
Evidence of the disclaimer and terms of service that Plaintiffs read or agreed to is probative on
the issue and would not be confusing to the jury.
CONCLUSION
For the reasons set forth above, LegalZoom respectfully requests that the Court deny
Plaintiffs’ Motion in Limine Regarding any Evidence of LegalZoom.com’s Disclaimer and/or
Waiver that is on its Website.

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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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