Janson et al v. LegalZoom.com, Inc.

Filing 189

SUGGESTIONS in opposition re 161 MOTION in limine to exclude any evidence or argument that Plainitffs claims are brought to protect the legal profession 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) 161 ) (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. 161) TO EXCLUDE EVIDENCE OR ARGUMENT THAT
PLAINTIFFS’ CLAIMS ARE BROUGHT TO PROTECT THE LEGAL PROFESSION
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine to Exclude Evidence or Argument That Plaintiffs’ Claims Are
Brought to Protect the Legal Profession (“Motion 161,” Doc. 161), states as follows:
In Motion 161, Plaintiffs seek to exclude from this case evidence or argument that their
claims are brought to protect the legal profession. In Motion 161, one of its avalanche of
motions in limine, Plaintiffs ask the Court for a sweeping ruling that LegalZoom can neither put
on evidence nor argue that “the claims asserted by plaintiffs in this lawsuit are brought to protect
the legal profession from competition.” Motion 161 at 1. Plaintiffs argue that such evidence is
not relevant and also argue that it “would mislead and confuse the jury.” Id.
In support of their motion, Plaintiffs do nothing more than cite Rules 401 and 402 and
cases that recite the uncontroversial principles that irrelevant evidence should not be offered or
heard and that this Court has broad discretion in determining the admissibility of evidence.

Plaintiffs’ unsupported motion asks for too much; the Court should deny it and take up the issue
of the propriety of this evidence and argument as the trial progresses.
As noted by the Court in Luce v. United States, 469 U.S. 38, 41 (1984), “[a] reviewing
court is handicapped in any effort to rule on subtle evidentiary questions outside a factual
context.” For this reason, while motions in limine are widely used, many courts have expressed
skepticism when faced with broadly drawn motions in limine. See Sperberg v. Goodyear Tire &
Rubber Co., 519 F.2d 708, 712 (6th Cir.) (“Orders in limine which exclude broad categories of
evidence should rarely be employed.

A better practice is to deal with questions of

admissibility . . . as they arise.”), cert. denied, 423 U.S. 987 (1975); Insignia Sys. Inc. v. News
Am. Mktg. In-Store, Inc., No. 04-4213, 2011 U.S. Dist. LEXIS 10740, at *12 (D. Minn. Feb. 3,
2011) (same); Landers v. Nat’l R.R. Passenger Corp., No. 00-2233, 2002 U.S. Dist. LEXIS
7851, at *7-8 (D. Minn. April 26, 2002) (same); EEOC v. Fargo Assembly Co., 142 F. Supp. 2d
1160, 1161 (D.N.D. 2000) (same).
Here, Plaintiffs ask the Court to prevent LegalZoom both from putting on evidence that
their claims are motivated by a desire to protect the economic interests of the legal profession
and to forbid LegalZoom from arguing that motivation. Plaintiffs assert that this evidence would
be presented through LegalZoom’s expert, Dean Powell. To that extent, LegalZoom respectively
refers the Court to its Suggestions in Opposition to Plaintiffs’ Motion in Limine (Doc. No. 149)
Regarding the History of the Regulation of the Practice of Law. Doc. 182. As explained there,
Plaintiffs have shown no reason to exclude Dean Powell from testifying on the background and
development of the regulation of the legal profession, including the economic interests and
forces involved, thereby giving the jury necessary context for understanding and deciding issues
in this case.

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Furthermore, the Court need not decide now whether it would be permissible for
LegalZoom to argue to the jury that Plaintiffs’ claims were motivated by a desire to protect the
legal profession. If Plaintiffs’ motivations are at issue in the case, then argument on those
motivations — and other alternative motivations that might be at work — would plainly be
permissible. The fact that plaintiffs do not question the legality or validity of the documents they
created on LegalZoom’s website, and the fact that two of the three named plaintiffs apparently
will not even attend the trial, makes it fair to question motivations. The Court cannot decide
definitively now whether those motivations will be in the case.
CONCLUSION
For the reasons set forth above, LegalZoom respectfully requests that the Court deny
Plaintiffs’ Motion in Limine to Exclude Evidence or Argument that Plaintiffs’ Claims are
Brought to Protect the Legal Profession.
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.
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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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