gray-large.pngLast night, I found myself turning over ideas as to how to for Adverse Possession cases one might create a framework for calculating a “Trial Win”.

Notably, I carefully chose the term “Trial Win” and define it only as prevailing against one’s neighbor at trial.

Barring truly exceptional instances, the reality parties who find themselves taking their Adverse Possession matter all the way through trial all end up the losers. The question then becomes: Who has lost less?

In my meandering mathematical framework, I came up with are four variables which dictate the outcome of trial. These are:

  • Case Merit:
  • Attorney(s) Skill;
  • Money Expended; and
  • Chance.

I want to keep things as simple as possible, so I use a Likert scale of values to the strengths within each of these areas as revealed below in the analysis of each component and then provide an overall equation and its analysis.

Case Merit (“M”) runs on a Likert scale 5 – 1. In other words, let’s have five be the stock broker’s equivalent of a strong buy and one at the other end of the scale equal a strong sell.

As a result, if you as my client have a strong case, you would score a 5 and at the same time the opposing party would score a 1. 

If your case had a moderately strong case (i.e. in brokerage terminology only a “buy” as opposed to a “strong buy”, then I would assign you a 4 and your opponent a 2.

And finally, if the case is a toss-up, I would simply indicate that your case is a 3 and so is your opponent.

Ok, now this is where I would like to suggest the most important component of this tool is recognized. Let’s look at the various spreads. In the first instance your 5 less your opponent’s 1 equals 4; in the second instance 4 – 2 = 2; and finally 3 – 3 = 0.

What this suggests – and which will become clearer as we progress – is that it is critical to understand your case merits in order to guage whether or not you even want to pursue it any further.

Skill of Attorney (“A”) is the next thing to think through. If the attorney is really great, he or she should be able to prevail on your behalf right? Well, not necessarily.

Here we are going to reverse the Likert scaling. In other words, a fantastic lawyer is rated as a 1 and a 5 indicates a poor attorney, albeit one who has passed the bar

OK, now place Attorney Skill (“A”) as a denomenatior and Case Merit (“M”) in the numerator (i.e “M”/”A”). What you get are a potentially 25 different answers 5 of which the numerator and denominator are equal to create what we might call your Skill Equator (“E”).

In other words by this method, if you have a case with M scored at 5, by hiring the most skilled attorney (i.e. a 1), you would have an “E” of 5. That’s the very best you could do. On the other end, would be to take a case with the lowest merit (1) and hire a poor attorney (5). In this case your “E” would be the worst possible level of 1/5.

Cash ($) is king right? Well, again the answer is yes and no. If you have unfettered access to dispose of cash, you might be able to drown your opponent. This is the reason why I think that Judges should seriously consider cost shifting of legal fees and costs. There are cases in which people simply decide that despite the merits they are going to throw enough money at the issue. When this becomes less of an option to them, they think more seriously about the merits of their matter and that in my humble opinion is good.

But, until we see Courts embracing RCW 7.28.083, we better figure how cash opperates without its help.

The general rule of thumb is that to take an adverse possession case all the way to trial is going to cost each party $50,000. I know, sounds riduclous right? It is!

As indicated above, that seems to be an obscene amount of money. But, what I thought to suggest is that there must be some difference in spend which results in greater results.

One area of spend relates to time and the other to money.  

As a digression, let’s dwell on time for a moment. Assuming, your attorney correctly bills (i.e. take out differences in overhead costs) at $200 and your opposing attorney correctly bills at $400. Well, then you are going to have to purchase twice as much of your attorney’s time to combat the opposing party.

In otherwords, we here want to presume that the opposing attorney can get things done twice as quickly if needed. In motions pleading, that can be critical to your case. If your attorney cant’ meet a deadline, he or she may have blown out your case. Ouch!

Money differences however, seem to allow an advantage to one side or another. To be honest, I don’t know exactly where the breaks are, don’t think there is anyone that really can (at least at present). But, again for the sake of having a fairly clean analytical framework, I will just say that the difference is going to be calculated in $5,000 increments.

So, if one party has judicioulsly spent $25,000 more than the other at the end of trial (i.e. they have likely spent $75,000 or more), that party would receive a 5; $20,000 = 4; $15,000 = 3; $10,000 = 2; whereas beating out your opponent with a bag of anything less than that $10,000 amount is not going to do much for you – but go ahead if you have $5,000 or more to waste score yourself a 1 for effort!

Finally, I think that we need to realize that chance (“?”) plays a big part of any lawsuit. You can work and work and work to control everything, but there is still a large element of chance. My proposition is that this chance becomes much more pronounced when the merits of the case are a 3 (i.e. a toss-up) as opposed to the 4/2 and 5/1 splits.

Here again, for the sake of analytical simplicity, I am going to assign some values. In a 5/1 split, I’ll say that chance (“?”) is still 5% of the game. Which means that the individual with strong merits still might have the rug pulled out from under them by a fluke which goes to a victorious party with low merits.

Continuing, a 4/2 split is going to have ? = 10%. And a toss-up case is going to have ? = 20% at least.

Ok, so here’s the equation giving Party B the benefit of chance: (M)(E)($) v. (M)(E)($)(1+?).

Look’s pretty simple. Let’s test it out.

Hypothetical I:

Party A: Has a very strong case and hires a pretty good attorney and pays a regular $50K to take his case through trial.

Party B: Has a very week case and thus choses to hire the best attorney possible and pays $75K to prosecute the case.

5(5/4) v. 1(5/5)(5)(1+?)

6.25 v. 5(1+.05)

6.25 v. 5.25

Here, by punching an extra bag of $25,000 at his great attorney; and Party A’s decision not to find the best lawyer for the job as well as not going toe to toe in the money race, Party B finds his odds of winning fairly good even though he will probably yet lose. If all these variables could be counted on as accurate, Party A has a 55% likelihood of obtaining the “Trial Win.”

Hypothetical II:

Party A has a moderately strong case, finds only a fair attorney, but pays $60,000 to prosecute the case through trial.

Party B then of course as a moderately weak case, finds an excellent attorney, but only pays $50,000 to prosecute the case through trial.

4(4/4)(2) v. 2(5/2)(1 + .1)

8 v. 5.5

Here again party B has done good to have found the best attorney, but it was really Party A’s “smart” use of cash that gave the bigger advantage. So, again assuming the mathmetical framework holds, Party A has a 60% likelihood of gaining the “Trial Win.”

Hypothetical III:

This is the toss-up case. Party A seeks out an excellent attorney, but only pays the normal $50,000. Party B seeks out a poor attorney and goes for broke shoveling an extra $25,000 at the attorney. And, here we will play out chance on both sides of the equation to see how much of a factor it is.

Party A with the Chance Advantage: 3(5/3)(1 + .20) v. 3(1/3)(5)

6 v. 5 (i.e. Party A, if luck has a 55% likelihood of winning).

But now let’s swap it so Party B is the one who is provided chance:

3(5/3) = 3(1/3)(5)(1 + .20)

5 = 6

Hmm, that’s interesting, chance floped the equation!

Now, with the caveat expressed that this is a rough-cut way of seeking to provide a framework for analysis of cases, is there any one thing that pops out as important?

If your answer is, yes I want to find the best attorney possible and hurl as much money as I can at him or her, well I can’t dissuade you from your conclusion, but I also would encourage you to find someone else to represent you, I am not interested.

Instead, this confirms two critical points.

First, it is extremely important to go through the initial step of figuring out your case’s merit with an attorney who is not just willing to do this, but able to do this as well; and tell you the truth.

Second, regardless of the level of your merit, seek to diplomatically resolve your matter. 

Attorneys that are willing to seek to do this will likely save you twice; 5 times; and sometimes even 10 times or greater the base “rule of thumb amount” of money (i.e. $50K) you would otherwise need to spend to solve your issue.gray-small.png