Janson et al v. LegalZoom.com, Inc.

Filing 179

SUGGESTIONS in opposition re 159 MOTION in limine to exclude any evidence or argument of the availability of legal forms or computer software in Missouri 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) 159 ) (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. 159) TO EXCLUDE EVIDENCE OR ARGUMENT OF
AVAILABILITY OF LEGAL FORMS OR COMPUTER SOFTWARE IN MISSOURI
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine to Exclude Evidence or Argument of Availability of Legal Forms or
Computer Software in Missouri (“Motion 159,” Doc. 159), states as follows:
In its Order certifying a class in this lawsuit, the Court described “the central issue of the
case” as “what type of online interaction between buyer and seller of legal forms constitutes
‘assisting in the drawing for a valuable consideration of any paper, document or instrument
affecting or relating to secular rights’” under § 484.010. Doc. 61 at 10. In its defense that
LegalZoom’s online fill-in-the-blank software does not cross the line into the unauthorized
practice of law, LegalZoom should be allowed to introduce evidence regarding the availability of
other similar computer software and legal forms in Missouri. Indeed, “one who may be in
violation of the text of section 484.020 may defend a claim under the statute by showing a
conflict between the text and activities that this Court has determined to be the authorized
practice of law.” Eisel v. Midwest BankCentre, 230 S.W.3d 335, 339 (Mo. 2007). LegalZoom

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therefore seeks to compare its online software to other examples of software and forms that have
not been held to be the unauthorized practice of law. Plaintiffs fail to demonstrate that this
information is not relevant to the issues in the case.
While it is true that a “defendant has no right to offer and a jury has no right to hear
inadmissible evidence,” the threshold for relevance and admissibility is a low one. United
States v. Ceballos, 593 F. Supp. 2d 1054, 1059 (S.D. Iowa 2009). All relevant evidence is
admissible. Fed. R. Evid. 402. Evidence is relevant if it has “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.
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); Fortune Funding,
LLC v. Ceridian Corp., 368 F.3d 985, 990 (8th Cir. 2004); Block v. R.H. Macy & Co., 712 F.2d
1241, 1245 (8th Cir. 1983). To support the court’s broad discretion, Plaintiffs cite Fortune
Funding, LLC, in which the court found the offered evidence to be so remote to the issues in the
case that it was inadmissible. 368 F.3d at 990 (finding a property’s condition in 1997-2000 was
not relevant to the property’s condition in 1985). In this case, the availability of computer
software and legal forms is not so remote to the issues of this case as to make such evidence
irrelevant. Furthermore, Rule 403 favors admissibility. See Levine, 477 F.3d at 603; Block, 712
F.2d at 1244. In fact, the general rule under Rule 403 is that balance should be struck in favor of
admission. Levine, 477 F.3d at 603; Block, 712 F.2d at 1244.
Plaintiffs’ argument that “the factual question for the jury to decide is whether
LegalZoom participated in or assisted in the drawing of legal documents,” Motion 159 at 2, is an
oversimplification that fails to go beyond the literal text of the statute. “Such statutes are merely

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in aid of, and do not supersede or detract from, the power of the judiciary to define and control
the practice of law.” Eisel, 230 S.W.3d at 338-39. In fact, one accused of violating the state’s
unauthorized practice of law statute may defend by comparing its activities to activities that have
not been held to be the unauthorized practiced of law. Id. at 339. Therefore, a comparison of
LegalZoom’s online software to other forms and software that has not been challenged could
help the jury determine whether LegalZoom’s software and forms are lawful. While Plaintiffs
argue that admitting this type of evidence would mislead the jury, they fail to describe with any
specificity how the jury would be misled. Plaintiffs seem to express concern that LegalZoom
would offer this evidence without utilizing a witness to testify about the software or legal forms.
However, LegalZoom’s expert, Dean Burnele V. Powell, will be called as a witness to testify to
these issues. Dean Powell will be available for plaintiffs to cross-examine. Under Eisel, the jury
should be permitted to consider evidence that allows a comparative analysis of approved conduct
with challenged conduct.
In sum, Plaintiffs provide no specific reasons why the availability of legal forms or
computer software is so remote to the issues in this case or is without any probative value.
Therefore, the court must find in favor of admitting this evidence and deny Plaintiffs’ motion in
limine.
CONCLUSION
For the reasons set forth above, LegalZoom respectfully requests that the Court deny
Plaintiffs’ Motion in Limine to Exclude Evidence or Argument of Availability of Legal Forms or
Computer Software.

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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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