Janson et al v. LegalZoom.com, Inc.

Filing 175

SUGGESTIONS in opposition re 153 MOTION in limine Regarding the Attorney/Client Relationship Between the Plaintiffs and Plaintiffs' Counsel 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 (Attachments: # 1 Exhibit 1)(Related document(s) 153 ) (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. 153) REGARDING THE ATTORNEY CLIENT
RELATIONSHIP BETWEEN THE PLAINTIFFS AND PLAINTIFFS’ COUNSEL
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine Regarding the Attorney Client Relationship Between the Plaintiffs
and Plaintiffs’ Counsel (“Motion 153,” Doc. 153), states as follows:
In Motion 153, plaintiffs represent to the Court that LegalZoom intends “to introduce
evidence of the nature of the attorney[-]client relationship between Plaintiffs and Plaintiffs’
counsel.” Motion 153 at 1. Specifically, plaintiffs suggest that LegalZoom intends to present
evidence concerning plaintiffs’ fee arrangement with their lawyers.
Despite the fact that case law cited by plaintiffs themselves denied multiple motions in
limine when the movant failed to describe or disclose to the court “with sufficient particularity”
the material sought to be excluded, see Probatter Sports, LLC v. Joyner Technologies, Inc.,
No. 05-CV-2045-LRR, 2007 WL 3285799, at *5, *9 (N.D. Iowa Oct. 18, 2007), plaintiffs here
cite to no deposition testimony or prior argument anywhere in the record where LegalZoom has
inquired into any plaintiff’s fee agreement with his attorneys. LegalZoom can only speculate

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that plaintiffs must be referring to the following innocuous exchange from the deposition of
Todd Janson — in which LegalZoom’s own counsel actually stopped Janson before he could
reveal information about his fee agreement with his counsel, despite Janson’s counsel’s failure to
object or silence his client:

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49
Q. Do you -- for instance, do you -- in your
current relationship with your lawyers, do you have
a written fee arrangement?
A. I believe they're advancing me right
now -Q. I don't want to know -A. Right.
Q. I don't want to know the nature, but do
you have a written agreement by which they are
providing you services as lawyers? That's kind of a
complicated way -A. Yeah.
Q. Did you sign anything with -- did you
receive anything in writing from your lawyers about
them becoming your lawyers?
A. I believe so, yes.
Q. Did you receive anything like that from
LegalZoom?
A. Not to my knowledge. I don't know.

Janson Depo. 49:6-24, attached hereto as Exhibit 1.
In denying LegalZoom summary judgment, the Court held that Missouri law
distinguishes between selling legal forms that others prepare and preparing legal forms for them.
Doc. 145 at 18-19. As the Court noted, a seller of legal forms falls within the safe harbor of In re
Thompson, which held that the sale of legal forms and instructions for filling them out “does not
constitute the unauthorized practice of law so long as the respondents and other[s] similarly
situated refrain from giving personal advice as to legal remedies or the consequences flowing
therefrom.” 574 S.W.2d 365, 369 (Mo. banc 1978).

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Although the Court held that a reasonable juror could conclude that LegalZoom prepares
documents for customers, LegalZoom is entitled to and intends to present evidence at trial and
argue to the jury that it does not prepare legal documents but rather that customers prepare their
documents themselves using LegalZoom’s software. If LegalZoom does not prepare documents
for customers, it is entitled to safe harbor under In re Thompson so long as it did not give class
representatives “personal advice as to legal remedies or the consequences flowing therefrom.”
Id.
In denying LegalZoom summary judgment, the Court focused on the representations
made in LegalZoom’s advertising, see Doc. 145 at 2-3, 18, clearly recognizing that what class
members believed about the operation of their relationship with LegalZoom is a crucial factual
issue in the case.

What class members believed about the formation of their business

relationship with LegalZoom is relevant to whether LegalZoom gave them personalized legal
advice. What class members understand about the process of engaging a lawyer is therefore
relevant both to the factual determination in the case and to testing the credibility of plaintiffs’
ultimate claim that they believe LegalZoom to be engaged in the practice of law. And thus,
whether plaintiffs understand the difference between retaining a lawyer, as they did with their
counsel in this case, and purchasing legal forms online through a (literally) impersonal and
automated website is relevant to the ultimate issues in this case.
Plaintiffs correctly observe that “[a] district court is given broad discretion to determine
the relevance of evidentiary matters.” See Motion 153 at 2, citing Wright v. Ark. & Mo. R.R.
Co., 574 F.3d 612, 619 (8th Cir. 2009). They fail to point out, however, that the Federal Rules of
Evidence favor admissibility, and that the balance under Rule 403 should generally be struck in
favor of admission. United States v. Levine, 477 F.3d 596, 603 (8th Cir. 2007); Block v. R.H.

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Macy & Co., 712 F.2d 1241, 1244 (8th Cir. 1983). Any question as to the admissibility of
evidence of plaintiffs’ understanding of what is entailed in engaging a lawyer should be resolved
in favor of admission.
As is evident from the careful questions of LegalZoom’s counsel in Janson’s deposition,
LegalZoom has no intention of probing at trial into the details of plaintiffs’ fee arrangement with
their counsel. LegalZoom is, however, entitled to probe plaintiffs’ understanding of whether
retaining an attorney is different from buying legal forms online. LegalZoom therefore is
entitled to inquire what plaintiffs know, from their own personal experience, about the process of
engaging a lawyer, including whether plaintiffs have entered into a written agreement when
retaining lawyers, including their present lawyers.
Plaintiffs’ Motion 153 therefore should be denied.
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.

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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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