Adverse Possession And The Burden Of Persuasion

Andrew M. McKenzie, Edmonds Lawyer

Lawyers and laypersons alike are prone to self-bias.  We tend to believe in our own case, and this righteous indignation can sometimes create blind spots.  Most commonly, these blind spots include failure to appreciate evidence and arguments advanced by the opposition.  Failure to accurately gauge risk leads to poor decisions in disputes, including missed settlement opportunities and throwing good money after bad in litigation.  When we analyze a case and engage in the art of projecting chances of success, it is critical to remind ourselves of an important fact- the plaintiff generally bears no only the “burden of production,” but also the “burden of persuasion.”  Sometimes people conflate the two.  The burden of production is the production of admissible evidence to establish each required element of the plaintiff’s cause of action.  If the claimant fails to produce evidence on any one of the elements, the claim will fail.  The burden of persuasion is different- the evidence must not only be produced and be admissible, but it must be believed (particularly in the face of contrary evidence advanced by the other side).  Generally, even when there is no conflicting evidence offered, the judge or jury is not required to believe the evidence you advance.

An adverse possession claimant is required to prove that possession of the claimed property was (1) open and notorious, (2) actual and continuous for the statutory period, (3) exclusive, and (4) hostile.  But remember that the claimant must not only produce evidence; the evidence must also be persuasive to the finder of fact (judge or jury).  In a recent unpublished case (Clevenger v. Courser), the plaintiff in an adverse possession case lost at trial and appealed.  She did not challenge the trial court’s findings of fact, but instead tried to rely upon evidence advanced at trial supposedly showing each of the elements of adverse possession.  In so doing, the plaintiff failed to take into account that the trial court’s credibility determinations are binding as long as there is evidence to support them; in other words, the plaintiff apparently assumed that the trial court would have to believe her.  Appellate courts will not disturb a trial court’s findings of fact, as long as there is at least some evidence in support.  Needless to say, the plaintiff lost on appeal.  Said the appellate court, “In the end, [Plaintiff’s] appeal fails because it relies on us reweighing evidence and remaking credibility determinations – tasks that are inappropriate in our appellate role.  The lesson here is that we must appreciate that other versions of events (even though we may not find them credible) can sometimes be accepted by a court no matter how sure we are that the truth is on our side.  This also highlights the importance of convincing the fact finder at the trial.

The lawyers at Beresford Booth have experience litigating real property disputes and presenting evidence persuasively in court.  We would be happy to assist you.

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