April 2013 Bar Bulletin
A New Framework: Depicting Legal Elements and Predicting Case Merits
By Robert W. Zierman
Clients come to lawyers to resolve their legal issues. A lawyer who can immediately opine upon the relative merits of a prospective client's case can greatly assist them in determining whether to hire that lawyer. So, what if the attorney had the ability to give an accurate preliminary opinion on the spot?
The purpose of this article is to explore this concept and provide a new method to attain it. This author works in the arena of boundary dispute law. So, the analysis created reflects this. Notwithstanding, these concepts may not be bound by the law of that arena. To the contrary, it is believed that they can be extended into other areas of law.
Adverse possession is the fact-intensive legal doctrine most often used to determine boundary disputes. First offered is a reintroduction to the elements of adverse possession. Second, these elements are keyed to visual depictions in the form of icons. Third, the interrelationship between adverse possession's elements is presented using both a Likert scale of 1 to 5 and 3D representations. This article concludes by implying that this framework can be used to create macro jurisprudential analysis in a manner similar to that which "data visualization" is now being applied to "big data."1
While slightly rearranged, the elements of adverse possession can very fairly be named as requiring actual possession that is: (1) "open and notorious;" (2) "hostile" and (3) "exclusive;" (4) held "continuously;" (5) for the "statutory period." To facilitate this presentation, admittedly "continuously" is used as a stand-in for the "actual and uninterrupted" language used in ITT Rayonier Inc. v. Bell.2 Ideally, these can be reduced to three elemental components. They are a determination as to: (a) sufficiency of notice; (b) sufficiency of use; and (c) the sufficient period of time in which these other two components are held together.
To start, consider "sufficiency of notice" as "open and notorious." Of considerable note, the late eminent real estate scholar, Prof. William B. Stoebuck,3 in his section on adverse possession in Washington Practice writes:
The adverse possession elements of "open" and "notorious" are usually ... joined together. In theory they are not the same. Activities or objects that are open are visible, not hidden from being observed. Notoriousness means that the activities or objects are known, or discoverable if not actually known, to the true owner.4
In considering this element as "open and notorious," the law fails to separately consider how "open" the person claiming adverse possession holds himself out to be. Correlatively, the law also does not separately look at how the title holder "notices" that open representation.
The second concept conveyed by Prof. Stoebuck is that "notorious" can be of two types; those which are "[actually] known" and those which are "[reasonably] discoverable if not actually known." The result is that "open and notorious" can be determined either by "actual notice" or "constructive notice."
Now, with respect to "sufficiency of use," "hostile" and "exclusive" operate in a very similar fashion. "Hostile" - the assertion of a superior right and not animosity or ill will5 - reflects the way the adverse possessor uses the property. In doing so, the adverse possessor has effectively taken the whole "bundle of sticks" from the title holder. This provides the element of "exclusivity."
The final element is "actual and uninterrupted." This simply requires that the factors invoking sufficiency of notice and sufficiency of use must be held "continuously" for the statutory period, usually 10 years.
To depict these different elements, graphic designer Curtis Dickie was called upon to create representative icons. They are these:
Disregarding for the moment the difference in colors, the top icon - representing actual notice - depicts an eye looking directly at a light bulb, which represents understanding of the idea. The second icon represents constructive notice, with the eye facing away from an unlit bulb - it doesn't matter whether there was actual notice. Together these icons represent "sufficiency of notice."
Hostile use - the third icon - is represented by the adverse possessor's hand holding a clod of the title holder's dirt. A "stop hand" is used to represent exclusive use. So, when the adverse possessor takes control of the land and stops the title holder from using it, "sufficiency of use" is met at that moment in time.
Finally, "continuity" was initially intended to be represented by the two links of a chain. This icon is used now to determine the degree to which a required tacking of a predecessor-in-interest's adverse use can be proved by the available evidence. How this is represented leads to the general use of the Likert scales.6
Likert scales of 1 to 5 are matched with respect to case merits for an adverse possessor moving left and right and dark red to dark green as: very poor, poor, toss-up, good, and very good.7 How does one actually score these elements? Beyond our current system of case triage in which it is yes, no or maybe, a Likert scale starts to offer the means to create some sort of qualitative - and perhaps even quantifiable - standards for case measure.
A good process is to analyze cases where a trial court's summary judgment has been upheld or reversed. Cases are categorized as dark red if the holding is against the adverse possessor or dark green if the holding is for the adverse possessor.
A case remanded for more evidence is a toss-up and is depicted by the gray. Other cases reversing a lower court's ruling register as light red or light green depending on whether they indicate more or less strongly for the adverse possessor than if summary judgment were upheld.
Comparing facts within individual cases allows additional gradation. There are aggregate facts and degrees of facts. For example, mowing grass is less indicative of adverse use than using a disputed strip of land for storage, which in turn is less indicative of adverse use than when a garage straddles the boundary line.
The next step is to run the sufficiency of notice and sufficiency of use scales at right angles to each other. Below "open and notorious" runs left to right along an x-axis. "Hostile" and "exclusive" runs vertically on a y-axis. This results in four quadrants upon which each case can be represented as a point.
Quadrant I would indicate a situation in which adverse possession is being set up, i.e., at the very least there has been a disseisin of the title holder's estate. Notice that each icon is dark green. Diametrically opposed, all the icons in the lower-left corner of quadrant III are dark red. This indicates no issue with title. The title holder doesn't need to bring an action - he or she already has a "quiet title."
Quadrant IV represents "hostile" and "exclusive" use, but the title holder doesn't have any "actual" or "constructive" notice as to that use. To the extent this occurs in the real world, we would likely see this with someone secreting the resources of another usually in some form of mining operation.
Now let's add the final element of time as shown below:
Notice that the quadrants are still in place. Originally, we had a snapshot in time. Here though, time is represented by the height of the box as 10 years - the statutory period. As a result, as long as the one claiming adverse possession can convince the court of "actual and uninterrupted" use as depicted here by being "continuously" within the box for that statutory period, he or she has won.
The final depiction is the layered-up 3D version of quadrant II:
A prescriptive easement has all of the same elements as adverse possession except one - exclusive use.8 Yet there is some quantum of use. Or, going back to the "bundle of sticks" metaphor, anyone holding an easement holds at least one or more of the bundle's sticks. So, here again, if there is either "actual" or "constructive" notice, unless there is absolutely no level of hostility and exclusivity, and this condition is held for the 10-year statutory period, an easement should be granted.9
With this theoretical framework in place, a lawyer often working with a fact-intensive doctrine of law could team with a mathematician, highly versed in statistical analysis, to determine a weighting system for his or her doctrine's regularly occurring facts. This would be done by creating an algorithm or perhaps a set of algorithms to be sequentially ordered. To test predictive accuracy, the lawyer might then enter the facts of non-recorded cases to determine the accuracy of the predictive model and adjust as may be necessary.
The end result ought to be an attorney positioned to take on new cases based and priced on their merits by plotting the case facts against the temporal lines of scatter plots of past cases. This is the part alluded to upfront about big data. The totality of this approach would reduce redundant research at the same time that predictive analysis is increased. The result would be to allow more clients, currently unable to afford to pursue their cases, to seek justice.
Robert W. Zierman is the principal attorney of Justice Smiles, pllc, a firm which primarily assists clients in resolving disputes with their neighbors. Zierman authors a blog on these topics at: www.boundarydisputelaw.com. He can be contacted at Robert@JusticeSmiles.com.
Note: The icons and depictions produced here are the property of Robert W. Zierman, Attorney at Law, pllc (DBA Justice Smiles, pllc) and are provided for use by the King County Bar Association Bar Bulletin with express consent. Additional use may legitimately be made only with the written consent of Robert W. Zierman.
1 See generally, "Getting Control of Big Data: How vast new streams of information are changing the art of management," Harvard Business Review, 59 (October 2012).
2 112 Wn.2d 754, 759 (1989).
3 See https://lib.law.washington.edu/content/guides/stoebuck.
4 William B. Stoebuck & Jason W. Weaver, Real Estate: Property Law, 2d ed. (Thomson/West 2004), Washington Practice vols. 17 & 18, "Adverse Possession" 8.11 at 523.
5 El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 854 (1962) ("In the law of adverse possession, ‘hostile' does not mean animosity, but is a term of art which means that the claimant is in possession as owner and not in a manner subordinate to the title of the true owner.").
7 This representation is not intended to suggest that adverse possession is a "green light" goal. Instead, it serves to show the degree to which an adverse possessor's claim may be proved by established jurisprudence. By that jurisprudence, at times the adverse possessor is the correct judicial choice.
8 Dunbar v. Heinrich, 95 Wn.2d 20, 22 (1980).
9 A situation in which there is notice, but not hostility and exclusivity, would be one of (revocable) permissive use. Unfortunately, if this isn't documented, and ideally recorded as well, there is a very likely chance that the user will "forget" that he or she had permission and will claim adverse possession.