April 2013 Bar Bulletin
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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."

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