Janson et al v. LegalZoom.com, Inc.

Filing 183

SUGGESTIONS in opposition re 151 MOTION in limine Regarding Any Evidence of the Missouri Bar Failing to Discipline or Take Action Against LegalZoom 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) 151 ) (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. 151) REGARDING ANY EVIDENCE
OF THE MISSOURI BAR FAILING TO DISCIPLINE OR
TAKE ACTION AGAINST LEGALZOOM.COM
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine Regarding Any Evidence of the Missouri Bar Failing to Discipline
or Take Action Against Legalzoom.com (“Motion 151,” Doc. 151), states as follows:
Citing no directly relevant authority, Plaintiffs seek to bar evidence that “the Missouri
Bar” has not taken action against or disciplined LegalZoom on account of class representatives’
purchases of products from the company. Motion 151 at 1. They argue that such evidence will
give rise to an inference that LegalZoom’s conduct is acceptable and legal.
The Supreme Court of Missouri has authorized the Office of the Chief Disciplinary
Counsel (“OCDC”), an agency of the judiciary, to investigate, institute, and prosecute
appropriate proceedings against parties engaged in the unauthorized practice of law. Mo. Sup.
Ct. R. 5.29(a). The OCDC represents the Missouri Bar in any proceedings against a person or

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entity accused of being engaged in the unauthorized practice of law. Id. The OCDC has taken
no action against or otherwise disciplined LegalZoom on class members’ claims.
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).
However, the Federal Rules of Evidence favor admissibility. See Levine, 477 F.3d at 603. The
general rule under Rule 403 is that balance should be struck in favor of admission. Id.; Block v.
R.H. Macy & Co., 712 F.2d 1241, 1244 (8th Cir. 1983).
While it is true that the court may exclude evidence that confuses the issues and leads to
litigation of collateral issues, Firemen’s Fund Insurance Co. v. Thien, 63 F.3d 754, 758 (8th Cir.
1995), Plaintiffs provide no explanation why the evidence at issue on Motion 151 would be
litigation of collateral issues. In Thien, the court did not allow a party to submit evidence related
to liability in the accident when the sole issue in the case was whether there was insurance
coverage. Id. at 759. In this case, the primary issue is whether LegalZoom engaged in the
unauthorized practice of law. The fact that the investigative and prosecutorial arm of the
Missouri judiciary has brought no action against LegalZoom for plaintiffs’ claims is clearly
relevant to determining liability in this case. The jury should therefore be permitted to receive
evidence of that fact.
Plaintiffs emphasize that Missouri law allows citizens to seek the return of money paid to
persons engaged in the unauthorized practice of law and claim that the Missouri Bar “has
nothing to do with the remedies or collection of those fees.” Motion 151 at 3. Plaintiffs are
incorrect. The state of Missouri also has the right to sue and collect such sums. § 484.020
RSMo. Nevertheless, this argument is irrelevant because the OCDC is given broad powers to
investigate and prosecute parties accused of engaging in the unauthorized practice of law.

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As Plaintiffs readily concede, the definition of the practice of law is a question for the
judiciary. Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697, 703 (Mo. banc 2008).1
The actions — or inaction — of the OCDC, the agency charged by the judiciary to investigate
and prosecute unauthorized practice of law claims, is relevant to the issue of whether a party is
engaged in the unauthorized practice of law.
Further, Plaintiffs fail to establish that any prejudice would result from the evidence in
question or that its admission would waste the jury’s or Court’s time. Plaintiffs must describe
with sufficient particularity why the Court should exclude the challenged evidence. Probatter
Sports, LLC v. Joyner Techs., Inc., No. 05-CV-2045-LRR, 2007 WL 3285799, at *5, *9
(N.D. Iowa Oct. 18, 2007). Accordingly, the jury should be permitted to consider this evidence.
LegalZoom does not intend to offer evidence on this point. It should nevertheless be
permitted to counter argument of or cross-examination testimony by plaintiffs’ counsel
suggesting that the Missouri Bar has investigated plaintiffs’ claims.
CONCLUSION
For the reasons set forth above, LegalZoom respectfully requests that the Court deny
Plaintiffs’ Motion in Limine Regarding Any Evidence of the Missouri Bar Failing to Discipline
or Take Action Against Legalzoom.com.

1

Plaintiffs equate the interpretations of the OCDC with “[i]nterpretative suggestions from
the legislature.” Motion 151 at 3. As discussed above, the OCDC is an agency of the judiciary,
not the legislature.
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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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