Professional Documents
Culture Documents
CONSIDERATIONS ON
By R. W. TENGA
ADVOCATE
MBEYA CENTRE
When I was invited by the TLS Secretariat to write a CLE paper on Trial
Preparation in our jurisdiction for practicing advocates I made some
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Tenga, R.W. ‘Trial Preparation’
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preliminary research on the subject. What I found out was that one
has to understand the role of an advocate in representing a client on
one hand, and then, on the other hand, situate the activities relating to
trial preparation within that role. On these two tasks I have drawn
inspiration from two trial skills authors: Susan Blake and Thomas
Mauet.
1
Blake, Susan Legal Advise & Drafting 5th Ed. Chapter 1 p.4.
2
Mauet, Thomas A. “Trial Preparation and Strategy” Ch. XI in Trial Techniques, 7th Ed. Aspen Publishers, NY, 2007 p. 483.
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fine-tune the basic framework to suit their working style. I have also
consulted some distinguished authors in our jurisdiction and within
other Anglo-American common law jurisdictions on the subject.3 Also
my familiarity with the subject arises from the fact that I am a Tutor of
Advocacy Skills at the Law School of Tanzania (with Dr. Wilbert B.L.
Kapinga, Adv., of Mkono & Co. Advocates, and Dr. Sengondo E.A.
Mvungi, Adv., of South Law Chambers), I have attended some training
modules based on the UK Skills training, and above all I am a
practicing advocate in Tanzania since 1986. This gives me the basic
comfort level of sharing my thoughts with you on this important
subject.
3
Lobulu, Ben THE PITFALLS OF LITIGATION, Lobulu & Co Advs. 2004 Arusha; Hon. Justice (rtd) B. D. Chipeta CIVIL
PROCEDURE IN TANZANIA (Dar es Salaam Univ. Press, 2002); Hon. Justice (rtd) B. D. Chipeta A MAGISTRATE’S
MANUAL (TMP, Tabora); Hon. Justice (rtd) B. D. Chipeta A HANDBOOK FOR PUBLIC PROSECUTORS (3rd Ed.); Hon.
Justice Richard Kuloba JUDICIAL HINTS ON CIVIL PROCEDURE (LawAfrica, Nairobi, Kenya); etc.
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4
Twaib, Fauz THE LEGAL PROFESSION IN TANZANIA (2nd Ed. LawAfrica, Nairobi)
5
GoT The Report of the JUDICIAL SYSTEM REVIEW COMMISSION, Dar Es Salaam, 1977. The Commission was Chaired
by Hon. Pius Msekwa, then Executive Secretary of CCM and later Speaker of Parliament for many years. The Commissioners
included prominent personalities and jurists such as Hon. Justice Yona Mwakasendo, JA.; Hon. Justice Barnabas A. Samatta, later
Chief Justice of Tanzania; Samuel Pundugu, former IGP; Ambassador Paul Mhaiki; Ambassador Daudi Mwakawago; Ambassador
Christopher Liundi; and Hon. Justice William Maina.
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6
Msekwa Commission Report, op. cit, p. 359.
7
Per Lord Denning M.R. in PETT v. GREYHOUND RACING ASSOCIATION LTD. (1969) 1 QB 125 at p. 132
8
Msekwa Commission Report. p. 157.
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“Example A:
Example B:
Example C:
9
LRCtz POSITION PAPER ON THE REVIEW OF THE CIVIL JUSTICE SYTEM ( LRCtz & BEST Program, GoT, Dar es
Salaam 2006) Para A.53 refers to complaints of source of Delays being Advocate’s unpreparedness.; also see Hon. Justice L.
Kalegeya ‘THE ROLE AND PLACE OF AN ADVOCATE IN THE ADMINISTRATION OF JUSTICE IN THE
COMMERCIAL COURT OF TANZANIA - ONE YEAR AFTER ITS ESTABLISHMENT’ Paper to be presented at the
Workshop on "Effective Performance: Commercial Court and Members of the Bar" organized by the High Court of
Tanzania (Commercial Division) in collaboration with DANIDA, Dar Es Salaam, 14th - 15th November 2000
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Example D:
Judge: Mr. "X", what does your client really claim against
Defendant?
Advocate: He claims.............
Judge: The document I have tells a different story
(Documents compared and scrutinised)
Advocate: I am sorry, My Lord, the clerk mixed up some pages
of the draft and the final Copy
Example E:
Example F:
Examples abound “
For may of us who went through the Civil procedure course in our law
degree studies remember the triggering event of a Civil trial centres
around the law suit – parties to suits; from of suit; recognized agents
and advocates; institution of suits; pleadings generally, plaint; written
statements of defence, set – off and counter – Claim (Orders I – VII of
The Civil Procedure Code – CPC). In short the immediate events that
lead one into court.
For those who have studied the nature of disputes the CPC’s approach
is formalistic in the extreme. The road leading to litigation in Court is
rather long and when the parties nock at the Court’s door they have, in
many cases, tried many alternatives to resolve the dispute, and the
Advocates’ crowning event – the trial - is but a last desperate attempt.
This is also the case when a Client comes to the Advocates’ offices for
a legal opinion. Consequently we must involve ourselves in
understanding origins and framework of a dispute in a less formalistic
manner and guide the parties into dispute processing rather than
litigation per se.
The Chart goes through 22 steps I may re – define the major phases of
a Civil Trial as follows;
Pre – Litigation
Litigation
o Pre – Trial
o Trial
o Judgment
Execution
Appellate Process
The Pre Litigation phase as seen from the Chart above has
about 5 sub-stages. Each requires certain skills that the
professional legal advisor has to unleash in order to assist the
Client in the resolution of his case.
one of the law office’s standard documents and each time may
be customised to suit the needs of a particular retainer
arrangement. The advocate in drafting the retainer agreement
needs to be conversant with the requisite provisions of the
Advocate’s Act Cap. 351 and the Advocates’
Remuneration Rules of 1991. 10
The end of a successful initial Interview will elicit from the Client
the necessary information that would enable the Advocate to
understand the facts of the case, what is in dispute, and what
kind of evidence can be obtained through witnesses and
exhibits. In the United Kingdom today it is mandatory to have
Witness Statements that are sworn by potential witnesses
giving factual testimony on the case11. Nothing in our law
prohibits the production of such statements, which are so useful
for trial preparation. As is natural the information given by the
Client in the first interview can only be a guiding exercise for
further probing, further interviews , research on the law, etc to
enable one to produce a legal opinion on the basis of which
focused plan of action can be carried out. The advocate as a
must should prepare interview notes on the basis of which
further inquiries would be carried out. A list of tasks that must
be undertaken afterwards needs to be generated and timelines
made for pursuing the matter.
12
Blake, Susan A Practical Approach to Legal Advice & Drafting 5th Ed. Blackstone Press, 1997 ; S. Blake Ch. 15 ‘The Vital
Role of Evidence’ pp.317 – 357 in A Practical Approach to Effective Litigation, 6th Ed. OUP 2005 ; Binder & Bergman ‘Fact
Investigation – From Hypothesis to Proof’ West Publishing, St. Paul, Minnesota, 1984
13
S. Blake, Effective Litigation, Ch. 15 op.cit. pp. 321 – 326.
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When you take each legal framework and try to see how the
facts collected fit into the framework what you are actually doing
is to generate a cause of action. The process does not come as
neat as stated here, there are maybe a lot of overlapping of facts
and vagueness in the applicable depending on the Client’s
objectives. But once the facts relating to each element of the
legal framework are identified a case now is built for further
work. It means if there are gaps, further work is needed. Maybe
this is the type of evidence that may only be obtained from the
opposite party, which means you must issue Interrogatories or
apply for Discovery14. This may be an essential preparatory step
that you must consider where the gaps are critical and the
information is obtainable. If each legal framework element is
connected to a factual set then the facts need to be proved
through credible evidence that in turn has to be admissible in a
Court of law through appropriate procedures. Here one must
consider the relevancy of the Law of Evidence, on the one hand,
and, the application of Procedural Law (The civil procedure code,
the criminal procedure code, etc), on the other hand. So we
have the four elements intertwined: Law, Facts, Evidence and
Procedure. This is the menu of the legal practitioner. A Case
Analysis Matrix may present what we have said here much more
graphically:
14
Order XI of the CPC ‘Discovery and Inspection’
15
Susan Blake, Effective Litigation, supra, at p. 213
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16
SWOT analysis is a strategic planning method used to evaluate the Strengths, Weaknesses, Opportunities, and Threats involved
in a project. Internal factors look at the Strengths and Weaknesses internal to the project. And External factors look at the
Opportunities and Threats presented by the external environment to the project.
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Facts Issues
Facts Issues Issues Brief Answer
Issues Conclusions
Brief Answer Facts
Conclusions Facts
Discussion Discussion
Discussion Discussion
Conclusion Conclusion
17
Visit their website at - http:// www.casesoft.com
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Legal writing theorists are said to prefer the 3rd and 4th formats.
Susan Blake suggests the following structure for a Legal
Opinion:18
1) Introduction
2) Summary of Advice
3) Cause(s) of Action
4) Defences
5) Remedies
6) Other points
7) Next Steps
4. Demand Notice
18
Susan Blake Effective Litigation. supra, Ch. 11 ‘Skills in Legal Writing’ pp. 238 – 239.
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5. Drafting of Pleadings.
The Litigation has three stages: (1). The Pre-Trial Stage - that
includes lodging of Pleadings, Interlocutory Applications if any,
ADR and the 1st Pre-Trial Conference; (2). The Trial Stage - that
includes the 2nd Pre-Trial Conference, Framing the Issues,
Opening Statements if any, Examination of Witnesses, and Final
Submissions; and, (3) Judgment.
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ii. Once the case has been assigned, it is the duty of the Judge
or Magistrate to ensure that the Defendant is summoned in
accordance with O.V Rule 1 CPC unless the Defendant has
suo motto appeared and admitted the claim by the Plaintiff,
in which case judgment ought to be entered in favour of the
Plaintiff.
iii. Serving pleadings is the task reserved for the court itself in
accordance with O.VI Rule 2 CPC. However in practice, the
parties or their advocates usually discharge the task of
serving pleadings.
iv. O.VII Rule 1 (2) CPC requires the defendant to file Written
Statement of Defence within a period of 21 days from the
date of service of the summons to defend. The court further
has authority, under the proviso to O.VIII Rule1 (2), to
extend the period following an application for such extension
by the defendant.
19
Some Practitioners keep what is known as a TICKLER FILE that has a system of raising a flag whenever a certain event is up-
coming.
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vi. O. VIII (A) Rule 3(1) CPC requires the Judge or Magistrate
to whom a case has been assigned to hold and preside over
a First Scheduling and Settlement Conference to be
attended by the parties or their recognised agents or
advocates. This conference must be held within a period of
21 days after the conclusion of the pleadings for the purpose
of ascertaining the speed track of the case, resolving the
case through negotiation, mediation, arbitration or such
other procedures not involving a trial.
vii. O. VIII (A) Rule 3(2) CPC requires the presiding judge or
magistrate in consultation with the parties or their
recognised agents or their advocates to determine the
appropriate speed track for a case and make a scheduling
order. Scheduling Order is an order that sets out future
events in the case from the date of the first conference. This
is done through fixing dates and time for dealing with future
events. This order specifies also if the case will proceed by
way of arbitration, mediation or trial and by what dates are
those steps to be completed having regard to the Speed
Track of the case.
suit.
time-line would have been known well before and what kind of
witnesses that the Client would rely upon. In framing issues,
the prepared Counsel would not undergo the embarrassing
silences we often fall into when the presiding Judicial officer
requests the parties to propose Issues that have to be
determined by Court since the Issues will have been the main
element in preparation of several pre-litigation documents –
Case Analysis, Legal Memorandum, the Demand Notice, etc.
Preparation of Opening Statements, Examination of Witnesses
and Final Submissions will all be guided by work prepared in the
Pre-Litigation stage. Witness preparation for Trial would not be
a hassle especially where a Witness Statement was prepared.
Refreshing of memory is an important element especially where
Trials take a long time before they actually start. If it is 4 to 6
years down the line the Witness’ memory may have grown
foggy and a statement written on first contact would go a long
way to trigger back memories that would have otherwise been
forgotten.
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