Janson et al v. LegalZoom.com, Inc.

Filing 182

SUGGESTIONS in opposition re 149 MOTION in limine Regarding History of the Regulation of the Practice of Law 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) 149 ) (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. 149) REGARDING
THE HISTORY OF THE REGULATION OF THE PRACTICE OF LAW
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine Regarding the History of the Regulation of the Practice of Law,
(“Motion 149,” Doc. 149), states as follows:
In Motion 149, Plaintiffs seek to exclude from this case evidence regarding the history of
regulation of the practice of law, claiming (a) it is not relevant, (b) it will confuse the jury, and
(c) it will waste the court’s time. All three propositions are incorrect.
Plaintiffs seek to exclude evidence that the jury could use to understand and put into
context the claims that Plaintiffs have brought against LegalZoom. Indeed, Motion 149 is
nothing more than a reformulation of their earlier frontal attack on LegalZoom’s expert, Dean
Burnele V. Powell, who is prepared to testify about the history of the regulation of the practice of

law and related matters.1 Plaintiffs seem frankly troubled by the prospect of their claims being
considered by a jury that has heard from an expert on the subject of how the legal profession has
been regulated by the judiciary. But evidence of the history of regulation of the practice of law
is relevant, it would not confuse matters, and presenting it would not unduly use judicial
resources. Thus, Motion 149 should be denied.
I.

The History of the Regulation of the Practice of Law is Relevant
Plaintiffs first assert that “the history of the regulation of the practice of law has no

bearing in this case on whether Legalzoom is complying with Missouri law.” Motion 149 at 1.
This assertion is neither supported nor supportable. Dean Powell is prepared to address
background and historical information on the practices and standards applicable to the legal
profession. There can be no serious question that understanding the history of regulation of the
practice of law would help jurors grapple with the claims of unauthorized practice of law
Plaintiffs have leveled against LegalZoom. The history of the regulation of the legal profession
is therefore relevant to — indeed, informs the entirety of — this case. Moreover, this case
involves numerous subjects with which jurors are not likely to be familiar, including the nature
of the practice of law and how the profession is and has been regulated. As such, evidence about
those matters, including the history of the regulation of the practice of law, is not only relevant
but essential to the task the jury will face.
Providing jurors with context in the form of testimony concerning the general history and
practices of businesses and industries, including the legal profession, is a common purpose of
expert testimony. See, e.g., Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505, 509 (2d Cir. 1977)
1

LegalZoom has of course already opposed Plaintiffs’ motion to exclude Dean Powell’s
expert testimony. Doc. 103. The Court denied Plaintiffs’ motion to exclude Dean Powell’s
expert testimony as it related to the Motion for Summary Judgment. Doc. 145.
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(“testimony concern[ing] [the practices of lawyers] . . . is admissible under the same theory as
testimony concerning the ordinary practices of physicians or concerning other trade customs: to
enable the jury to evaluate the conduct of the parties against the standards of ordinary practice in
the industry.”); see also Police Ret. Sys. of St. Louis v. Midwest Inv. Advisory Serv., 940 F.2d
351, 357 (8th Cir. 1991); United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991).
In its certification Order, this Court stated that “the central issue of th[is] case” is “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 the Missouri unauthorized practice of law statute. Doc. 61 at 10
(quoting § 484.010 RSMo.). Critical to the determination of that issue is an understanding of
what activities have been deemed not to fall within the scope of the statute and why. Without
that information, jurors with little to no experience with the legal profession or its regulation are
likely to be completely unequipped even to understand the matters in dispute in this case.
II.

Evidence of the History of the Regulation of the Practice of Law Would Not Confuse
the Jury or Unduly Use Judicial Resources
Plaintiffs then contend that evidence of the history of the regulation of the practice of law

should be excluded because it would confuse the jury about what law it should apply and would
waste judicial resources. Motion 149 at 2. But Plaintiffs cannot seriously contend that there is a
risk that jurors will confuse (a) an expert witness discussing the history of the regulation of the
practice of law with (b) the Court instructing them as to the law they are to apply in this case. If
they do, LegalZoom submits that Plaintiffs underestimate the Court’s ability to manage the trial
of this action. The Court will of course ensure that neither Dean Powell nor any other witness
offers a legal conclusion or opinion with respect to the ultimate legal issue in the case, and will
instruct the jury on its task and the law it must apply, thereby avoiding any possible confusion.
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CONCLUSION
For the reasons set forth above, LegalZoom respectfully requests that the Court deny
Plaintiffs’ Motion in Limine Regarding the History of the Regulation of the Practice of Law.
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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