Janson et al v. LegalZoom.com, Inc.

Filing 87

SUGGESTIONS in support re 86 MOTION for order Excluding Expert Testimony filed by David T. Butsch on behalf of Plaintiffs Gerald T. Ardrey, C & J Remodeling LLC, Chad M Ferrell, Todd Janson. (Related document(s) 86 ) (Butsch, David)

IN UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TODD JANSON, et al., on behalf of
themselves and on behalf of all others
similarly situated,

Plaintiffs,
v.
LEGALZOOM.COM, INC.

Defendant.

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Case No. 2:10-cv-04018-NKL

Suggestions in Support of Plaintiffs'
Motion to Exclude Expert Testimony

Table of Contents
Table of Authorities ........................................................................................................................ ii
I.

Introduction ..........................................................................................................................1

II.

Statement of Facts ................................................................................................................1

III.

Background ..........................................................................................................................3
A.

B.
IV.

The Statutory Basis of Plaintiffs’ Claim for the Unauthorized practice of
Law ..........................................................................................................................3
The Content of Professor Powell’s Report ..............................................................4

Argument .............................................................................................................................6
A.

B.

V.

Professor Powell’s Testimony, Which Consists of Opinion Testimony on
the Law, is not Admissible Under Federal Rule of Evidence 702, Because
it Will not Assist the Trier of Fact Understand the Evidence or Determine
a Fact in Issue...........................................................................................................6
Professor Powell’s Testimony Fails to Meet the Relevancy Test of Federal
Rule of Evidence 702 and is Therefore Inadmissible. .............................................8

Conclusion ...........................................................................................................................9

i

Table of Authorities
Cases
Abbott Laboratories v. Brennan, 952 F.2d 1346 (Fed. Cir. 1991) .................................................6
Adalman v. Baker, Watts & Co., 807 F.2d 359 (4th Cir. 1986) ......................................................7
Burkhart v. Washington Metropolitan Area Transit Authority,
112 F.3d 1207 (D.C. Cir. 1997) ......................................................................................................7
Casper v. SMG, 389 F. Supp. 2d 618 (D. N.J. 2005) ......................................................................8
Farmland Indus. v. Frazier-Parrott Commodities, Inc.,
871 F.2d 1402 (8th Cir. 1989) .........................................................................................................7
Fortune Funding, LLC v. Ceridian Corp., 368 F.3d 985 (8th Cir. 2004) .......................................9
In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 61 (S.D.N.Y. 2001) ..................................7
In re Thompson, 574 S.W.2d 635 (Mo. banc 1978) ........................................................................5
Loeb v. Hammond, 407 F.2d 779 (7th Cir. 1969) ...........................................................................7
Marx & Co., Inc. v. Diners' Club, 550 F.2d 505 (2nd Cir. 1977) .................................................7,8
Montgomery v. Aetna Casualty & Surety Co., 898 F.2d 1537 (11th Cir. 1990) .............................7
Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92 (1st Cir. 1997) ......................................................7
Owen v. Kerr-McGee Corp., 698 F.2d 236 (5th Cir. 1983) ............................................................7
Pelletier v. Main Street Textiles, LP, 470 F.3d 48 (1st Cir. 2006) .................................................6
Peterson v. City of Plymouth, 60 F.3d 469 (8th Cir. 1995) .............................................................7
Polski v. Quigley Corp., 538 F.3d 836 (8th Cir. 2008) ...................................................................9
Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988) .............................................................................8
The Pinal Creek Group v. Newmont Mining Corp.
352 F. Supp. 2d 1037 (D. Ariz. 2005) ............................................................................................7
U.S. v. Ceballos, 593 F. Supp. 2d 1054 (S.D. Iowa 2009) .............................................................9
ii

United States v. Curtis, 782 F.2d 593 (6th Cir. 1986) .....................................................................7
United States v. Leo, 941 F.2d 181 (3rd Cir. 1991) ........................................................................7
United States v. Vargas, 471 F.3d 255 (1st Cir. 2006) ....................................................................6
Ward v. Westland Plastics, Inc., 651 F.2d 1266 (9th Cir. 1980) .....................................................7

Statutes, Rules, Regulations, and Other Authorities
§ 484.010 RSMo., et seq. .................................................................................................................3
§ 484.020 RSMo, et seq .............................................................................................................3,4,9
Fed R. Evid. 401 . ............................................................................................................................8
Fed R. Evid. 402 . ............................................................................................................................8
Fed R. Evid. 702 . .........................................................................................................................5,6

iii

Plaintiffs Todd Janson, Gerald T. Ardrey, Chad M. Ferrell, C & J Remodeling LLC, and
the certified Plaintiffs’ class (“Plaintiffs”), move for an order excluding the testimony of
LegalZoom’s designated expert Burnele Venable Powell. In support of this motion, Plaintiffs
submit the following memorandum in support.
I.

Introduction
Plaintiffs move for an order of this Court excluding the testimony of witness Professor

Burnele Venable Powell, a law professor, whom LegalZoom has identified as an “expert
witness” it intends to call at trial. Professor Powell offers nothing more than impermissible
opinions of law, and applications of his view of the law to the facts as alleged by LegalZoom.
Presentation of this legal argument – in the guise of purported “expert testimony” – will only
waste time and unduly delay the trial proceedings in this case. More importantly, by offering this
so-called “evidence” LegalZoom improperly attempts to usurp the role of this Court. Lastly,
Professor Powell’s should be excluded as irrelevant.
II.

Statement of Facts
1.

On February 15, 2011, Defendant LegalZoom produced a report containing the

opinions of its sole designated expert, Burnele Venable Powell. The report is attached hereto as
Exhibit 1.
2.

Professor Powell is a former law school dean who teaches professional

responsibility at the University of South Carolina School of Law. (Report at 2).
3.

Legalzoom asked Professor Powell to complete two tasks in this case. First, he

was asked “to analyze the concept that it is the practice of law to offer customers a software
platform that allows them to choose a product or services suitable to their needs; that allows
customers to enter information in response to questions on a questionnaire; that then populates
1

that information into blanks in a predrafted form; and that prints the form for mailing to the
customer, who can then use it to advance his or her legal interests.” (Report at 2).
4.

Professor Powell, at the request of Legalzoom, was also “asked to describe the

use, in states other than Missouri, of less restrictive enforcement alternatives to a complete
prohibition on computerized filing in of forms.” (Report at 2).
5.

In answering the first question, Professor Powell opines:

a.

“. . . I conclude that Plaintiffs’ contention is erroneous: No computer (or owner of
a computer) can practice law or render a legal opinion by virtue of providing a
mechanism for an individual to record self-generated information.” (Report at 2).

b.

“. . . no computer-based delivery process falls within the scope of activities that
have historically been understood to be the practice of law or that his historically
been targeted for regulation as to the unauthorized practice of law.” (Report at 2).

c.

“Provision of an electronic formal for users to fill in the blanks in the manner that
the user dictates – whether it involves the use of pre-formatted hard-copy pages of
paper, pre-formatted electronic facsimilies of a page of paper, or the uploading of
responses to questions that will be recorded electronically and subsequently
printed out as pre-formatted electronic facsimilies of a page of paper—has not
been what the legal profession has focused on as the practice of law.” (Report at
3).

d.

“. . . self-help aids should not be treated as the unauthorized practice of
law. (Report at 14).

6.

In answer to the second issue, Professor Powell found “no approach that simply

seeks to deny nonlawyers a role in extending legal services to the public is likely to work.”
(Report at 25-26).
7.

Through the course of his report, Professor Powell discusses various subjects,

including the history of the regulation of the practice of law, the history of legal “self-help,” and
the alternatives to a prohibition on use of computerized forms. (Report at 3, 19, 25).

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III.

Background
This case is about LegalZoom’s unauthorized practice of law in the state of Missouri. As

set forth in Plaintiffs’ complaint, Legalzoom’s business practice of charging Missouri consumers
a fee for completing various legal documents violates Missouri law. The starting place for the
analysis is the statute, which both defines the “practice of law” and the “law business,” and states
who may — and who may not — lawfully engage in those activities in Missouri.
A.

The Statutory Basis of Plaintiffs’ Claim for the Unauthorized Practice
of Law

Section 484.010 defines the practice of law and the law business, stating:
1. The “practice of the law” is hereby defined to be and is the
appearance as an advocate in a representative capacity or the
drawing of papers, pleadings or documents or the performance
of any act in such capacity in connection with proceedings pending
or prospective before any court of record, commissioner, referee or
any body, board, committee or commission constituted by law or
having authority to settle controversies.
2. The “law business” is hereby defined to be and is the advising or
counseling for a valuable consideration of any person, firm,
association, or corporation as to any secular law or the drawing or
the procuring of or assisting in the drawing for a valuable
consideration of any paper, document or instrument affecting
or relating to secular rights or the doing of any act for a valuable
consideration in a representative capacity, obtaining or tending to
obtain or securing or tending to secure for any person, firm,
association or corporation any property or property rights
whatsoever.
§ 484.010, RSMo. (emphasis added).
Section 484.020 states who is and who is not authorized to practice law and engage in the
law business in Missouri:
No person shall engage in the practice of law or do law business,
as defined in section 484.010, or both, unless he shall have been
duly licensed therefor and while his license therefor is in full force
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and effect, nor shall any association, partnership, limited
liability company or corporation, except a professional
corporation organized pursuant to the provisions of chapter 356,
RSMo, a limited liability company organized and registered
pursuant to the provisions of chapter 347, RSMo, or a limited
liability partnership organized or registered pursuant to the provisions of chapter 358, RSMo, engage in the practice of the law or
do law business as defined in section 484.010, or both.
§ 484.020, RSMo. (emphasis added).
Lastly, Section 484.020.2 provides for a civil cause of action for treble the fee paid
against any person or entity engaged in the unauthorized practice of law. § 484.020.2 RSMo.
Section 484.010.2, which defines the “doing of the law business” is of particular
importance here. For Plaintiffs to prevail, they must only establish that LegalZoom, for a
valuable consideration, drew or assisted in the drawing of “any paper, document or instrument
affecting or relating to secular rights.” § 484.010.2 RSMo.
LegalZoom’s sole designated expert witness is Burnele Venable Powell. Professor
Powell intends to testify about the law he wants the Court to apply in this case, and how the
Court should treat LegalZoom’s conduct under that law.
B.

The Content of Professor Powell’s Report

Burnele Venable Powell is currently a professor at the University of South Carolina
School of Law, where he teaches courses in professional responsibility. Professor Powell’s
report, which serves as a preview of his trial testimony, consists of nothing but legal analysis and
application of his view of the law to his view of the facts of this case. The report contains
citations to numerous cases and sets forth how Professor Powell would decide this case if he
were the judge.
Professor Powell describes the history of the regulation of the practice of law from

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colonial times to the modern era, asserting that historically our regulatory system has been able
to “accommodate . . . individuals operating pro se with the assistance of self-help providers.”
(Report at 15). He also describes his experience using the LegalZoom website, (Report at 16),
and opines that legal forms are widely available on the internet from a variety of sources,
including courts. He favorably compares the services of LegalZoom to those provided by the
divorce kit seller in In re Thompson, 574 S.W.2d 635 (Mo. banc 1978), suggesting LegalZoom’s
conduct is not illegal.1
The following excerpts from Mr. Powell’s report confirm each of the opinions was
derived by Mr. Powell solely by applying his interpretation of the law, not as it is, but as it
should be, to his view of the facts in this case. Rather than offering “scientific, technical, or other
specialized knowledge that will assist the trier of fact to understand the evidence or to determine
a fact in issue” as contemplated by Rule 702, he rejects the Plaintiffs’ theory of the case and
offers his personal opinion as to what should properly be considered the practice of law:
•

For the reasons set forth below, I conclude that Plaintiffs’ contention is
erroneous: No computer (or owner of a computer) can practice law or render a
legal opinion by virtue of providing a mechanism for an individual to record
self-generated information. (Report at 2).

•

Central to the error of misapplying unauthorized practice of law analysis to
computer-based delivery processes is a failure to appreciate that to aid an
individual in handling her personal legal affairs by providing her with
forms—whether the forms are paper or otherwise—has not historically been
deemed to be the practical focus of unauthorized practice of law oversight . . .
(Report at 3).

•

Provision of an electronic formal for users to fill in the blanks in the manner
that the user dictates – whether it involves the use of pre-formatted hard-copy
pages of paper, pre-formatted electronic facsimilies of a page of paper, or the

1

Remarkably, Professor Powell completely ignores the most recent opinions of the Missouri
Supreme Court concerning the practice of law and further, fails altogether to reference the
Missouri statutes governing the practice of law.
5

uploading of responses to questions that will be recorded electronically and
subsequently printed out as pre-formatted electronic facsimilies of a page of
paper—has not been what the legal profession has focused on as the practice
of law. (Report at 3).
•

. . . self-help aids should not be treated as the unauthorized practice of law.
(Report at 14).

Perhaps these arguments could be advanced to persuade the Missouri legislature or Supreme
Court that the statutes regulating the unauthorized practice of law in Missouri should be
modified. They are not, however, the proper subject of testimony for an expert witness.
IV.

ARGUMENT

This Court has “broad discretion to exclude expert opinion evidence about the law that
would impinge on the roles of the judge and the jury.” Pelletier v. Main Street Textiles, LP 470
F.3d 48, 54 - 55 (1st Cir. 2006). See also Abbott Laboratories v. Brennan 952 F.2d 1346, 1352
(Fed. Cir. 1991) (trial court has broad discretion to admit or exclude expert testimony). The
burden to show that an expert witness should not be excluded is on the party offering the expert.
See, e.g., United States v. Vargas, 471 F.3d 255, 265 (1st Cir. 2006). Here, the “expert legal
opinions” of Professor Powell clearly impinge on the role of this Court, are irrelevant and should
be excluded.
A.

Professor Powell’s Testimony, Which Consists of Opinion Testimony
on the Law, Is not Admissible Under Federal Rule of Evidence 702,
Because it Will not Assist the Trier of Fact Understand the Evidence
or Determine a Fact in Issue.

Rule 702 of the Federal Rules of Evidence governs expert testimony, and limits the scope
of such testimony to specialized knowledge regarding factual matters:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise . . .
6

Fed R. Evid. 702 (emphasis added).
In construing this rule, the Court of Appeals for the Sixth Circuit succinctly described the proper
scope of expert testimony:
Experts are supposed to interpret and analyze factual evidence. They do not
testify about the law because the judge’s special knowledge is presumed to be
sufficient . . .
United States v. Curtis, 782 F.2d 593, 599 (6th Cir. 1986). Indeed, it is an “axiomatic principle”
that expert testimony about law is not admissible. See, e.g., The Pinal Creek Group v. Newmont
Mining Corp., 352 F. Supp. 2d 1037, 1042 (D. Ariz. 2005) (“The principle that opinion evidence
concerning the law is inadmissible is so well-established that it is often deemed a basic premise
or assumption of evidence law – a kind of axiomatic principle”) (internal quotations omitted). As
the court in Burkhart v. Washington Metropolitan Area Transit Authority, 112 F.3d 1207, 1213
(D.C. Cir. 1997), stated, “Each courtroom comes equipped with a ‘legal expert,’ called a judge.”2
Similarly, testimony that consists of legal conclusions – the application of law to facts –is
inadmissible because it does not assist the trier of fact, but, instead, impermissibly invades the
role of the court. See, e.g., Farmland Indus. v. Frazier-Parrott Commodities, Inc., 871 F.2d
1402, 1409 (8th Cir. 1989) ([t]he special legal knowledge of the judge makes the witness'
2

Thus, courts have uniformly prohibited testimony on legal issues. See, e.g., Nieves-Villanueva
v. Soto-Rivera, 133 F.3d 92, 100 (1st Cir. 1997); Marx & Co., Inc. v. Diners’ Club,550 F.2d 505,
509-10 (2nd Cir. 1977); United States v. Leo, 941 F.2d 181, 196 (3rd Cir. 1991); Adalman v.
Baker, Watts & Co., 807 F.2d 359, 365-68 (4th Cir. 1986); Owen v. Kerr-McGee Corp., 698 F.2d
236, 240 (5th Cir. 1983); United States v. Curtis, 782 F.2d 593, 599 (6th Cir. 1986); Loeb v.
Hammond, 407 F.2d 779, 781 (7th Cir. 1969); Peterson v. City of Plymouth, 60 F.3d 469,
475(8th Cir. 1995); Ward v. Westland Plastics, Inc., 651 F.2d 1266, 1270 (9th Cir. 1980);
Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990); Burkhart v.
Washington Metropolitan Area Transit Authority,112 F.3d 1207 (D.C. Cir. 1997), 112 F.3d at
1213 (D.C. Cir.); In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 61, 64 (S.D.N.Y. 2001)
(“Every circuit has explicitly held that experts may not invade the court’s province by testifying
on issues of law”) (citing cases).
7

testimony superfluous [and] [t]he admission of such testimony would give the appearance that
the court was shifting to witnesses the responsibility to decide the case) (quoting Marx & Co. v.
Diner's Club, Inc., 550 F.2d 505, 510 (2d Cir. 1977)). Here, the Court should not permit
Professor Powell to tell the jury, as described in his report, that LegalZoom’s conduct is “selfhelp” and not the unauthorized practice of law.
The case of Casper v. SMG, 389 F.Supp.2d 618 (D.N.J. 2005), is directly on point. In
Casper, an antitrust case, plaintiff sought to have a law professor testify as an expert witness.
The expert in Casper “relie[d] on case law and statutes, applying them to the contemporaneous
documentary record and oral testimony ... to answer legal questions.” Id. at 621. The court in
Casper held that the proposed testimony, whether it was characterized as addressing an issue of
fact or law, was inadmissible. The court concluded by saying that plaintiff “is free when the time
comes to make such arguments and offer such conclusions in legal memoranda, [but] he may not
do so through the expert testimony of a law professor.” Id. at 622. See also Specht v. Jensen, 853
F.2d 805, 808 (10th Cir. 1988) (proposed legal expert’s testimony that “articulates and applies
the relevant law” is inadmissible). Likewise, LegalZoom should not be allowed to argue legal
issues through the testimony of Professor Powell.
B.

Professor Powell’s Testimony Fails to Meet the Relevancy Test of Federal
Rule of Evidence 401 and is Therefore Inadmissible.

Professor Powell’s opinions are not relevant to any disputed factual issues and therefore
should be excluded. “‘Relevant evidence’ means 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. “Evidence which is not
relevant is not admissible.” Fed. R. Evid. 402. “A defendant has no right to offer and a jury has

8

no right to hear inadmissible evidence.” U.S. v. Ceballos, 593 F. Supp. 2d 1054, 1059 (S.D. Iowa
2009). This court has broad discretion in determining the admissibility of evidence, Fortune
Funding, LLC v. Ceridian Corp., 368 F.3d 985, 990 (8th Cir. 2004), and should exercise its
discretion to exclude Powell’s irrelevant opinion testimony.
Professor Powell’s report fails the basic relevancy rule enunciated in Polski v. Quigley
Corp., 538 F.3d 836, 839 (8th Cir. 2008) that expert testimony “be useful to the finder of fact in
deciding the ultimate issue of fact.” His report includes:
•

the history of the regulation of the practice of law (Report at 3);

•

the history of legal “self-help” (Report at 19);

•

the advancement of communication and information technology
(Report at 21); and,

•

the alternatives to an outright prohibition on the use of
computerized forms (Report at 25).

As previously discussed, the statutory underpinning of Plaintiffs’ cause of action is Section
484.020.1 RSMo, which prohibits “the drawing” or “assisting in the drawing for a valuable
consideration” of “any paper, document or instrument affecting or relating to secular rights.” The
various subjects that constitute Professor Powell’s report do not make any of these factual
determinations more or less probable.
Expert testimony, like Professor Powell’s, which simply suggests to a jury what the law
should be and how it should be applied, is properly excludable as irrelevant.

V.

Conclusion
Because Professor Powell’s proposed testimony is legal argument dressed as expert

opinion, will not assist the trier of fact, improperly invade the role of this Court, and are

9

irrelevant, the Court should properly exclude him from providing testimony at trial.

Edward D. Robertson, Jr., # 27183
Mary Doerhoff Winter, # 38328
BARTIMUS, FRICKLETON,
ROBERTSON & GORNY
715 Swifts Highway
Jefferson City, MO 65109
573.659.4454, 573.659.4460 (fax)
[e-mail],
[e-mail]

/s/ David T. Butsch
David T. Butsch, # 37539
James J. Simeri, #52506
BUTSCH SIMERI FIELDS LLC
231 S. Bemiston Ave., Ste. 260
Clayton, MO 63105
314.863.5700, 314.863.5711 (fax)
[e-mail]
[e-mail]

Timothy Van Ronzelen, #44382
Matthew A. Clement, #43833
Kari A. Schulte, #57739
COOK, VETTER, DOERHOFF &
LANDWEHR, PC
231 Madison
Jefferson City, Missouri 65101
573.635.7977, 573.635.7414 (fax)
[e-mail]
[e-mail]
[e-mail]

Randall O. Barnes, #39884
RANDALL O. BARNES & ASSOCIATES
219 East Dunklin Street, Suite A
Jefferson City, Missouri 65101
573.634.8884, 573.635.6291 (fax)
[e-mail]

Steven E. Dyer, #45397
LAW OFFICES OF STEVEN DYER
10850 Sunset Office Drive, Ste. 300
St. Louis, MO 63127
314.898.6715
[e-mail]
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I certify that on April 8, 2011, I filed the foregoing with the Clerk of the Court using the
CM/ECF system. The system sent notification of this filing to the following:
Party

Counsel
Robert M. Thompson
James T. Wicks
BRYAN CAVE LLP
One Kansas City Place
1200 Main Street, Ste. 3500
Kansas City, MO 64105
816.374.3200, 816.374.3300 (fax)

Defendant
LegalZoom.com, Inc.

John Michael Clear
Michael Biggers
James Wyrsch
BRYAN CAVE LLP
One Metropolitan Square, Ste. 3600
211 N. Broadway
St. Louis, MO 63102
314.250.2000, 314.259.2020 (fax)

/s/ David T. Butsch

11

Exhibit 1