Janson et al v. LegalZoom.com, Inc.
SUGGESTIONS in opposition re 162 MOTION in limine Motion in Limine to exclude any evidence or argument that LegalZoom does not provide legal advice to its customers 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) 162 ) (Wicks, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
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,
Case No. 2:10-cv-04018-NKL
SUGGESTIONS IN OPPOSITION TO PLAINTIFFS’ MOTION
IN LIMINE (DOC NO. 162) TO EXCLUDE EVIDENCE OR ARGUMENT
THAT LEGALZOOM DOES NOT PROVIDE LEGAL ADVICE TO CUSTOMERS
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine to Exclude Evidence or Argument That LegalZoom Does Not
Provide Legal Advice to Customers (“Motion 162,” Doc. 162), states as follows:
In Motion 162, plaintiffs contend that LegalZoom should not be permitted to introduce
evidence or argument that it does not give its customers legal advice because, plaintiffs argue,
the giving of legal advice was not an issue in recent Missouri document preparation fee cases.
Plaintiffs argue that such evidence is therefore irrelevant and inadmissible. In fact, however,
such evidence is plainly admissible, both because plaintiffs themselves have put in issue whether
LegalZoom gives customers legal advice, and because the evidence is relevant to whether
LegalZoom is entitled to the protections under In re Thompson for sellers of legal documents that
customers prepare themselves.
Plaintiffs themselves placed in issue whether LegalZoom gives customers legal advice.
In responding to Statement of Uncontroverted Fact No. 35 in LegalZoom’s Motion for Summary
Judgment, plaintiffs stated:
Plaintiffs state that in practice, LegalZoom does give legal advice because
LegalZoom selects the legal documents purchased by its customers . . . . Further,
LegalZoom selects the form or template, the provisions of the document, the legal
language of the documents, and fills-in a customer’s specific information . . . .
LegalZoom also suggests the answers to be given by customers on its
questionnaires . . . .
Doc. 113 (sealed) at 16 (emphasis added; citations omitted). Plaintiffs clearly intend to introduce
at trial evidence that LegalZoom selects customers’ documents, the form or template, and the
provisions and language of the document, suggests answers to be given on questionnaires, and
fills in customers’ information. Evidence that LegalZoom does not provide legal advice by
performing these actions (if it in fact does perform these actions), and that class representatives
themselves did not believe they received legal advice from LegalZoom on account of these
actions, is therefore relevant and admissible.
Moreover, evidence that LegalZoom does not give customers legal advice is relevant to
whether LegalZoom or its customers prepare their documents. 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 that others prepare 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 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) (emphasis added).
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.1 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.”
Whether LegalZoom gives customers personal advice is relevant to that inquiry and
therefore admissible. While plaintiffs argue, inappositely, that “[a] defendant has no right to
offer and a jury has no right to hear inadmissible evidence,” Motion 157 at 2 (citing the criminal
case of United States v. Ceballos, 593 F. Supp. 2d 1054, 1059 (S.D. Iowa 2009)), the fact of the
matter is that, under Rule 402, “[a]ll relevant evidence is admissible.”
Moreover, the standard for relevance is not a particularly high one. Under Rule 401,
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. Plaintiffs have placed whether LegalZoom gives
customers legal advice in issue, and thus whether LegalZoom actually did give any class
representative legal advice is clearly a fact of consequence to the determination of the action.
Despite the Court’s holding as to what a reasonable juror could find, precedent supports
the view that software such as LegalZoom’s, which “pose[s] questions to the user . . . without the
direct participation of an employee” via “decision-tree software,” allows customers to create
documents themselves. Oregon Ethics Opinion No. 1994-137, 1994 WL 455098 (Or. State Bar
Ass’n 1994) (“The use of self-help legal software, whether achieved by running a program on
one’s own computer or by remotely using the online service’s program, is simply a high-tech
way to access text contained in a database. Such database information in electronic form is
essentially no different than the information contained in a self-help legal book or divorce
kit . . . . In a sense, the customer who operates the legal software, whether on a personal
computer or online using an information service, is the one doing the customizing, much as does
the reader of a legal self-help text or one completing a do-it-yourself legal kit.”).
Because the jury can find that LegalZoom does not prepare documents for customers, but rather
that customers prepare them themselves, evidence that LegalZoom does not provide customers
legal advice is a fact of consequence to the determination of whether LegalZoom is entitled to
the protections of In re Thompson.
Finally, while plaintiffs argue that the Court “has broad discretion in determining the
admissibility of evidence,” see Motion 162 at 3 (citing Fortune Funding, L.L.C. v. Ceridian
Corp., 368 F.3d 985, 990 (8th Cir. 2004), they fail to mention 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. Macy &
Co., Inc., 712 F.2d 1241, 1244 (8th Cir. 1983). Any question as to the admissibility of evidence
that LegalZoom does not give customers legal advice should be resolved in favor of admission.
Whether LegalZoom gives customers legal advice is relevant to counter plaintiffs’ express
contention that it does so, as well as to whether LegalZoom’s customers prepare their own
documents. Plaintiffs’ Motion 162 should be denied.
For the reasons set forth above, LegalZoom respectfully requests that the Court deny
Plaintiffs’ Motion in Limine to Exclude Evidence or Argument That LegalZoom Does Not
Provide Legal Advice to Customers.
BRYAN CAVE LLP
By: s/ James T. Wicks
Robert M. Thompson
James T. Wicks
Christopher C. Grenz
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: (816) 374-3200
Fax: (816) 374-3300
John Michael Clear
Michael G. Biggers
One Metropolitan Square – Suite 3600
211 North Broadway
St. Louis, MO 63102
Tel.: (314) 259-2000
Fax: (314) 259-2020
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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