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Tenga, R.W. ‘Trial Preparation’


TLS-CLE Mbeya Centre – 26.11.2010

CONSIDERATIONS ON

TRIAL PREPARATION FOR ADVOCATES:

THE PRACTITIONERS TOOL BOX

By R. W. TENGA

ADVOCATE

(LAW ASSOCIATES ADVOCATES)

TANGANYIKA LAW SOCIETY - CLE Seminar

MBEYA CENTRE

26th November 2010

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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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.

On the Advocates’ role in representing a client Susan Blake


summarises the position as follows:

It is crucial as a practicing lawyer to remember at all times that


you are there because the client needs representing and you are
there to representing the client fully. From the first interview to
the end of the case you are not there to try to fit the Client into a
Chapter in a legal text-book, or to judge the Client, but you are
there to find out all you can about the case and to do all you can
for the Client. You are just a form of agent.1

Critical to this role is the Advocate’s command of the Client’s case in


terms of fully understanding it; and at this juncture preparation
becomes the key to the Advocate’s professionalism. Thomas Mauet,
the Trial Techniques guru has this to say about preparation:

The “secret” to effective trial preparation is no secret at all. It’s


preparation, preparation, and more preparation! It’s 90
percent perspiration, 10 percent inspiration. It’s preparing
sooner, not later. Hence, the trial lawyer who starts preparing
for trial early, does it systematically and thoroughly, and
incorporates an understanding of psychology into that
preparation is more likely to achieve a successful result at trial.2

So questions relating to the techniques of preparation for representing


a Client do not appear to be the menu on the basis of which legal
textbooks are written but rather appear to be some practical pointers
garnered in the course of legal practice itself. At one point Blake
claims that each one of us, practitioners, develops and perfects his
own style and technique, so surely one style does not fit all. Yet some
general pointers can be worked through and then each one of us can

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.

My preliminary inquiry into the subject did enable me to prepare a


framework of my presentation whereby I try to cover three areas that
may warrant our attention:

A. What is a Trial? What is the Role of an Advocate and the


raison d’être for representation?

B. How do we un-pack the “Trial process” and assign Tasks


and Activities that the Advocate must undertake in the
course of representation?

C. What are the Practice tools for effective trial preparation?

I propose to consider each area separately:

A. Of Trials and the necessity of Representation

Trial preparation may only make sense where we have a clearer


understanding of what a Trial is. And to answer this question one has
to take recourse to the definition of a Trial as given by jurists, in case
law and other authoritative texts.

A trial is simply defined as a process under which disputes are


authoritatively determined. This process enables the parties and the

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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decision makers to distinguish truth from falsehoods in any factual


situation and enable the decision maker to make a fair and just
decision. The trial process is fundamentally the same, be it a criminal
trial or a civil trial. In both cases a procedural process for finding the
truth is put in place that takes account of the basic principles of ‘due
process’ and eliminates the imperfections of human nature by creating
a level ground upon which falsity and truth may be distinguished.

The growth of the law, fundamental rights and complex organization of


society has made it increasingly difficult to understand the law on the
basis of a simple Code of Hammurabi or the 10 Commandments we
see in the Holy books. Understanding the law has become such a
challenging matter that even the legal profession itself has specialists
for every imaginable branch of the law. For this reason and many
others the right to representation in a majority of modern democracies
has become one of the fundamental rights for an individual. Hon.
Justice Fauz Twaib in his excellent book on the Legal Profession in
Tanzania notes that in Tanzania the right to representation is a
statutory right, vide Section 310 of the Criminal Procedure Act.4
Further that under case law Khassim Manywele v R. per
Mwalusanya, J. the High Court has given this right a Constitutional
basis by inferring the right from Article 13(6) (a) of the Constitution
which presumes the innocence of every person accused of a criminal
offence until the contrary is proved in a Court of law. Much as it may
appear obvious there have been attempts both in the Mainland
Tanzania and Zanzibar to do away with the legal profession. Back in
1975 the Mbeya Regional Executive Committee of TANU (the then
Ruling Party) recommended, to the JUDICIAL SYSTEM REVIEW
COMMISSION5 (‘The Msekwa Commission’ as it became known), for the
abolition of private legal profession:

“Muundo wa Mahakama yetu nchini unaoruhusu kuwapo kwa


Mawakili wa Utetezi haufai kabisa kwa sababu zifuatazo:-

i. Upotovu wa habari zinatolewa na Umma juu ya Kesi


au tukio linalohusika.

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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ii. Unahimiza unyonyaji.


iii. Unaruhusu na kuhimiza rushwa, dhuluma, uonevu na
chuki kati ya watu.
iv. Unachelewesha upelelezi na uendeshaji wa kesi, kwa
sababu ya kutafuta kupata ushahidi zaidi ambao upo
ili upotoshwe au ambao hauwezi kupatikana na
ambapo hawakuwepo wakati wa tukio. Hii
inaonyesha kuwa hawauamini Umma wa mahali pa
tukio ambao una habari za kweli na ushahidi kamili
na wa kweli.
v. Muundo wa Mawakili wa Utetezi uliopo sasa
haulingani na unapotosha sisa yetu ya Ujamaa na
Kujitegemea

Kwa hiyo, muundo na kazi za Mawakili wa utetezi zifutwe


kabisa. Kwa sababu kama “Mabaraza ya Haki ya Umma”
yataundwa kama tulivyopendekeza, muundo na kazi za mawakili
hazitakuwa na nafasi katika muundo na utaratibu wa utendaji
kazi wa Mabaraza Mapya”6

The Mbeya Committee thus recommended for the abolition of private


legal practitioners and to replace the courts with Peoples’ Tribunals
that did not require legal representation.

The Msekwa Commission rejected these recommendations and took its


counsel from common law luminaries such as Lord Denning7, and in a
statement that summarizes the rationale for legal representation the
Commission stated:

“The services of an advocate are of paramount importance in


most interpersonal relationships which are governed by law. It is
not possible to conceive of situations or relationships which or
whose effects would not be governed or finally determined by
law. Hence, all citizens are subject, at one time or another in
their dealings, to the laws relating to crime, contract, tort,
constitutional affairs, marriage, industry, trade, citizenship,
employment, agriculture, et cetera. In all their relationships
human rights are likely to be affected. The guidance of
lawyers, whose business it is to know what the law would
govern a particular situation, is indispensable.”8 (Emphasis
Added)

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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The duties of the lawyer when it comes to representation of clients are


certainly wider than that of a mere agent. He has certain ethical norms
that traditionally guide the conduct of an advocate as a professional
advisor. These norms cover about 6 different areas of concern
including - Litigation Fairness; Competence; Loyalty; Confidentiality;
reasonable fees; and, public service; which would cover a full blown
course in professional legal ethics. I will deal only with two of those 6
sets of norms: Litigation Fairness and Competence. In relation to
Litigation Fairness an advocate has a duty to the Court, the Client, the
opposite parties and the public to represent the Client with diligence
and candour. An advocate would not deliberately mislead the Court,
raise frivolous issues, delay court process, disrespect the court, hide
material facts or authoritative texts, etc. The ‘Due Process’ of the trial
cannot be achieved if the advocate’s duties were otherwise. The topic
in this paper partly focuses on the aspect of Diligence (‘umakini’ in
Kiswahili), a part of litigation fairness, as a duty and promise owed by
the professional advisor to the Client and the Court. The failure of
diligence generates laziness, sloppy research, failure to grasp the
essence of the Client’s claim and general inability to represent the
client at the requisite standard or professional benchmark. The second
aspect of focus here relates to Competence. The instructions received
by the Advocate are covered both under contract, the law of torts and
statutory directives that generate a particular set of rights and duties
that guide the advocate/client relationship. The advocate presents
himself to the Client and the public at large as a person trained in law
and as such professionally competent to handle the client’s matter.
This presentation generates what is known as the duty of competence.
A statutory regime for the training of Advocates is set up by several
statutes but the main one is the Advocates Act that sets up the Council
of Legal Education which oversees the system under which Advocates
are trained – and thus once certified may project themselves as
competent to represent others in law matters. The Advocate is only
admitted to the Bar by the Chief Justice only where he fulfils the basic
training requirements as required by the Council. Complementary to
this under the TLS’ Continuing Legal Education (CLE) program there is
a quality control mechanism that not only fine-tunes the competence
of advocates but assures the public that knowledge-wise we remain
relevant to the current legal changes. Where an advocate fails to
represent the Client properly due to incompetence, the Client has both
contractual and malpractice remedies that he may pursue. In cases of
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serious professional negligence a statutory disciplinary mechanism is


in place to remedy a breach by the incompetent advocate. Poor
preparation, or its absence, may be a clear indicator of incompetence.
There has been serious criticism from both the Bench and the Law
Reform Commission on Advocates’ incompetence arising from, inter
alia, lack of preparation.9 Writing about the variety of incidences that
occur in Court that reflect Counsel’s unpreparedness, Justice Laurean
Kalegeya gives some graphic, and pathetic, examples which I
reproduce herein:

“Example A:

Advocate: My Lord, I pray for 2 week's adjournment because I


don't have my file with me as it is locked in one of my
drawers and the keys thereto are with my personal
secretary who is sick.
Judge: But, for sure you know where she stays.
Advocate: That apart, My Lord, I need further instructions from
my client
Judge: Your client is present in Court and you were together
before the Court started.
Advocate: Honestly, My Lord, I am yet to be paid my fees.

Example B:

Judge: This matter should be expeditiously dealt with. Will you,


both Counsels, propose a near future hearing date?
Advocate: It is becoming difficult for me to propose a date
because I left my diary 10 kilometres away.

Example C:

Judge: Your pleadings make reference to various Annextures.


However, half of those named are not annexed.
Advocate: Ah! My Lord, I have just discovered that the filing
clerk left them in my file.

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:

Advocate: Although this matter is coming up today for hearing,


on 2nd reflection we have decided to appeal against
your ruling on preliminary objections
Judge: But you are aware that such a decision is not
appealable at this stage
Advocate: My Lord, that can't be. An appeal is a right
Judge: Have you researched on the matter?
Advocate: No My Lord, I so assumed.
Judge: Read the Rules

Example F:

Advocate: I have my witness ready but I pray for time to


interview him
Judge: How come that you haven't interviewed your witness at
this time when the trial is supposed to commence?
Advocate: (Silence)
Judge: Has he just arrived from upcountry or somewhere else?
Advocate: No, My Lord, he was here
Judge: Then, what happened?
Advocate: I thought the matter would not proceed.
Judge: On what basis?
Advocate: (Silence)

Examples abound “

It is therefore pertinent to address this issue amongst us.

Thus both diligence in pursuing a client’s matter and competence are


two areas of professional legal ethics that must be in constant
background as we survey the practical activities that relate to trial
preparation. The typical trial would either be a Criminal Trial or a Civil
Trial. For our purposes here I will use the Civil Trial to focus on certain
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core activities an advocates needs to pay attention to in the course of


the Trial.

The Structure of the Civil Trial

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.

I beg to make myself clearer in the following sketch of dispute


processing where I assume a client brings to advocates an issue he has
that require legal advice and guidance. The Flowchart moves from
when the Client comes to see the Advocate up to when Judgment is
entered – See Next Page:
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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

Each stage demands certain skills among preparation that I propose


we look into the first and second stages as the Execution and
Appellate Stages are not within the scope of a paper on Trial
Preparation such as this. I examine each of the two stages carefully:

B: Un-Packing Each Phase of the Civil Case Trial.

B.1 Pre- Litigation Phase

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.

1. Meeting the Client.

The first sub-stage is that of meeting the Client. There are


certain organisational frameworks that enable the Client to
meet an attorney with relative ease. He may have made an
appointment and through it has already given the lawyer an
idea of his problem, or sometimes referred by a third party, or
has already written to the Advocate explaining the problem. In
other cases the Client just comes into the office ‘looking for a
lawyer’ as it were. Whatever the case an Advocate needs to
prepare for a Client Interview. Where there is prior notice and
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some information has been sent over an Advocate is best


advised to study the filed documents and have an initial
assessment of the case. A checklist of questions must be
prepared before hand that will facilitate an exchange of
information that is relevant to the case. Mastery of such
information is important for it also tells the Client that you have
read the documents and the questions are based on what you
have read. Avoid reading the documents in the Client’s
presence unless you are seeking elaboration from him. The
caveat does not apply where the Client brings documents to
you during the interview. If the documents are bulky then
postpone the interview, where possible, to some other time to
enable you to peruse the documents.

At this point three essential skills are required. The Advocate


first needs to have good interviewing skills. More often than not
we cross-examine our Clients or sometimes when we think the
case is familiar we adopt the ‘I know’ attitude which blocks the
Client from telling his story. Both styles are wrong. When you
cross-examine your Client you generate a negative attitude that
stops the free flow of information. Experts on interviewing skills
tell us that at this stage you are the listener. And you must be
an active listener who prods the Client into telling what is
material in his case without undue interruptions. The
Questioning skill required here is that of Open Questions that
would enable the Client to explain the problem. The cross-
examination model is often based on Closed Questions that
generate a ‘Yes’ or ‘No’ response without giving the interviewee
the opportunity to tell his story. The fact finding or mining
process is greatly jeopardised where the Client is manoeuvred
into a situation where he feels challenged and frustrated. While
many experienced advocates have good skills out of experience
the rest of us must be assisted into best interviewing practices
through workshop, seminars, and CLEs on interviewing skills.
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The second skill here is that of initial Advice and Counselling.


As most of us are aware when we meet a Client for the first
time certain pre-interview information out to be brought out
clearly. A short KYC (Know Your Client) is a necessary ‘due
diligence’ step to avoid a conflict of interest scenario. All of us
need to have a standard form in which we may elicit the basic
bio-information of the Client. The form elicits all the basic
information of the Client – name, addresses – both physical and
postal, marital status, immediate relatives, phone and email
references, etc. It is submitted that such a form should be a
standard menu in every law office and once obtained the
information should be properly recorded and filed for future
references. It is not uncommon to find advocates with no such
basic information about their Clients and in locating physical
addresses of these clients court process servers at times cannot
get assistance from advocates. After the initial interview or
during the interview where conflict of interest is disclosed it is
mandatory to explain to the Client about it and if necessary to
stop the interview and advise him to see another lawyer. The
initial interview may also disclose other matters of substance
for example that the matter is time barred under the laws of
limitation. It is important to apply some initial counselling skills
to show the client that the case is a non-starter. Or in certain
case immediate action to maintain the status quo (Interim
Injunctions) or to preserve the subject-matter of the case
(Mareva Injunctions) may be required before taking any other
long term step. Here counselling skills are required in order to
guide the Client properly.

The third element here is that of Instructions to the Advocate –


the retainer. Much as one cannot be exact on what would be
the final remuneration of the Advocate it is important that the
Advocate/Client relationship be explained from the start. The
Client has to know what it means to have an advocate and what
are the duties and rights that both have against each other. The
modus operandi of the relationship, and remuneration, has to
be discussed and advisedly be reduced into writing in the form
of a retainer agreement. A standard form agreement should be
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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.

2. Research on Facts, Law and Case Analysis.

The role of facts in legal action cannot be underestimated -


facts are the gist of legal disputes. Hence one of the basic
functions of trial preparation is mastery of factual detail. Susan
Blake argues that this is a critical skill that advocates often
ignore at their peril. Yet facts are not as simple as they seem.
10
The Advocates' Remuneration and Taxation of Costs Rules, 1991 [G.N. No. 515 of 1991] made
under Section 69 of the Advocates’ Act, Cap. 351 (R.E. 2002)
11
See LRCtz ‘Position Paper on the Review of the Civil Justice System’ op cit.
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Any factual situation is problematic as the main source of proof


is the human person whose ability to comprehend any set of
facts is beleaguered by several problems which include: lack of
factual resource, unreliability and inaccuracy of factual sources,
interpretation problems (e.g. where a photograph shown to two
people generates conflicting interpretations), ambiguity,
assumptions, contradictions, irrelevancy, pre-judgment, and,
definition of what is a fact!12

Due to the challenge of managing facts it is important that an


advocate should have a system in place for collecting, probing
and checking facts. In short, a system of information gathering
and management. In collecting information from witnesses and
various sources each fact must be recorded and kept in a
manner that will enable the advocate to retrieve the information
easily. Where an Advocate visits a scene of an incident that is
relevant to the case he ought to make notes of the visit, and if
photographs are taken, serialise the photos and record and file
them carefully. If other documents and exhibits are collected
the same method should be used with notes on the exhibits
properly filed and documents photocopied. The sources vary
but typical sources include witnesses; documents; real evidence
(eg. Objects damaged, artifacts, paintings, etc.); electronic
evidence; admissions, expert witnesses, judicial notice and
matters of general knowledge, etc.13

Factual evidence so collected must be analysed through a two-


stage process: (i) To decide what facts are most important in
relation to the issues of the case; and, (ii) To see how much
weight should be given to each individual fact. The analysis of
the evidence depends also on the legal framework within which
the factual material can be tied to in order to identify a cause of
action.

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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The factual material gathered must be not only identified


properly but must be able to prove every element of the legal
claim. The research into the law that governs the dispute
becomes essential at this stage and one has to take a
systematic approach with regards to what is at issue. There are
four basic elements that must be taken into account in case
analysis, which enable the advocate to ‘see the wood for the
trees’ as it were. These are: Facts, Law, Procedure and
Evidence. Once the facts are collected as stated one has to
identify issues and see how they relate to the law. The
statutory law and case law all provide legal frameworks that are
readily recognisable. These in civil actions maybe Contract,
Tort, Misrepresentation. Blake uses these three types of
frameworks to show how the combination of factual and legal
analysis leads to the identification of the appropriate cause of
action. Let us adopt two examples from Contract and Tort.

1) Elements for a Breach of Contract Action:

 The Making of a Valid Contract


 Agency
 Express Terms of Contract
 Implied Terms of Contract
 Performance of Contract
 Breach of Contract
 Loss arising from Breach
 Causation of Loss
 Foreseeability of Loss

2) Elements for a Negligence Action:

 Existence of Duty of Care


 Nature of Duty of Care
 Vicarious Liability
 Breach of Duty of Care
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 General Damages for Pain and Suffering


 Special Damages for Losses to date
 Ongoing Future Loss

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:

Fig. 2 – Case Analysis Matrix (Breach of Contract)15

14
Order XI of the CPC ‘Discovery and Inspection’
15
Susan Blake, Effective Litigation, supra, at p. 213
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Legal Facts Evidence Evidence for Definition of


Elements of the to Support Other Side or any Issues
Case Client Not Yet between the
available Parties
Existence of
Contract
Agency
Express
Terms
Implied
Terms
Performance
Breaches
Causation of
Loss
Foreseeabilit
y of Loss

If all the material facts exist to support a cause of action and


those facts through evidence support the Client’s case (good
facts) as opposed to those facts that support the Adversary’s
case (bad facts), and the unavailable facts, through inference,
support your Client’s case, then the probability of your client
having a better chance of winning the case is higher. The
analysis if carried with diligence it may graphically assist the
Advocate in assessing the case and make a decision on the way
forward. It enables the advocate to consider whether further
evidence is required due to existing gaps that can easily be
observed; to consider what facts are more likely to be contested
by the other side so that you have a fair view of your ‘soft under-
belly’ and you may devise earlier on methods of countering the
attacks; to see whether the cause of action is appropriate given
the factual basis of the case; and finally it enables to carry out
the subsequent steps with ease as you have actually done a
SWOT Analysis of your case.16 The subsequent Legal Opinions,
Notices, Pre Trial Negotiations and Drafting of Pleadings all rely
heavily of the case analysis. This is an essential preparatory
step that has to be undertaken in any serious attention of
mastery of facts and law in any case. Software developers have
produced electronic methods of case analysis and one of the

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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good example used at our Law Firm, Law Associates Advocates,


is CaseMap.17

3. The Legal Memorandum

The Legal Memorandum or the Legal Opinion is usually a


summation of what the legal advisors sees as the status of the
case. Legal opinions may be written at a very early stage to
advise whether the matter brought to an advocate is actionable.
Later in the process Legal Opinions may be solicited for a
variety of reasons including: advising whether an action should
be initiated; advising on the progress of the case; advising on
remedies; advising on remedies; advising on settlement; etc.
Where an opinion is made after going through the Case Analysis
it is usually a general opinion that covers most of the areas
mentioned here. This becomes the statement on the basis of
which the case would move forward. Although no standard
structure is adhered to some conventions have grown over time
on how a Legal Memorandum is structured. A legal
memorandum is assumed to have certain standard parts that
include: a heading, a summary of the relevant facts, succinct
identification of the legal issues, a discussion of the law relevant
to the legal issues, and application of that law to the facts, a
conclusion that is responsive to the legal issues. The Canadian
Legal Research organisation suggests several competing
formats:

Format 1 Format 2 Format 3 Format 4

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

Each legal memorandum or opinion is customised to focus on


Client requirements and objectives, but would also assess the
strengths of the case vis-à-vis the case of the opposite party.
Consequently, the opinion is a privileged communication and
confidential in nature. The advantages of having a Legal
Opinion in file is not only limited to having a ready summation
of the case but includes the ability of passing over the file to a
colleague who can effectively hold a brief by going over the
opinion. The Legal opinion is the basis on which the Advocate
may advise the client on how to handle the matter either
through negotiation or through court action. In either case once
the strengths of the case are properly assessed and the Client
so instructs a Demand letter is forwarded to the opposite party.

4. Demand Notice

Although in many cases a Demand Letter is not a legal


requirement good and prudent practice requires that one
should be written. The letter should be written with care for if it
includes any admissions these may be used against your Client
should the action go to Court unless it is written ‘Without
Prejudice’. The letter may offer a settlement that does not
pursue the full redress, and generally it gives the other party a
chance to settle without going to Court. A general summary of
what a Demand Letter would include the date, the recipient's

18
Susan Blake Effective Litigation. supra, Ch. 11 ‘Skills in Legal Writing’ pp. 238 – 239.
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contact information, and the legal phrase WITHOUT PREJUDICE


to protect the sender with regard to the contents of the letter; a
summary of the matter at issue; a demand for a specific relief
or payment; a deadline for settling the matter; the sender's
contact information and signature; and the term demand letter
stated in the body of the letter to direct the recipient to act
accordingly. Clearly parts of the Demand letter would be
derived from the Legal Memorandum. The Demand letter once
received by the opposite party may generate the possibility of
settlement through Negotiation. The Advocate needs to
prepare for Negotiation in order to assist the Client to arrive at
the most favourable settlement. Negotiation and Mediation
Skills are essential for carrying a successful settlement.

5. Drafting of Pleadings.

As it is with the Demand Letter the Drafting of Pleadings is a


task that is made much easier when one has carried out the
Case Analysis and also submitted a Legal Memorandum as
already suggested. The major type of Pleading in Tanzania is
the Plaint. The CPC is categorical that a Plaint states only the
material facts of the case. The factual elements that support
the cause of action can easily be obtained from the Case
Analysis Matrix and so can the list of exhibits that would be
used to prove the facts. Many tasks that follow in identifying
who to sue and in what forum can be completed with relative
ease before going to Court.

6. The Trial Notebook.

In other jurisdictions such as the UK , USA and Canada the Trial


Notebook is a tool used by practitioners to assist in Trial
Preparation. A note on this useful tool is pertinent here. A trial
notebook is a simple structured method that lawyers use to
organize trial documents. For quick access and reference during
the trial, documents to be used in a court need to be efficiently
organized. It is obvious that during the process of collecting
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information about the case, researching the law and case


analysis one would have collected a large array of documents
and material in a Case File some of which are irrelevant for trial
purposes. The case file will inevitably be loaded with cluttered
documents, and maybe exhibits, that have no any logical
arrangement. The Trial Notebook saves the situation by
focusing on the essential documents for Trial organized in a
visual structure that allows quick reference or retrieval of
documents. It is usually made up of a tabbed loose-leaf file that
has sections for every set of documents – pleadings, witness
lists, exhibits lists, issues, opinions, court rulings, legal
authorities, checklists, etc.. Within each section there may be
tabbed numbers to identify individual documents. The system
assures counsel to access documents in an efficient and
organized manner. Most of us are aware how we lose time in
court trying to trace a document hidden in a myriad of papers.
Once the document is identified we take it out of the file.
Should you go through the same procedure on more than three
documents the table is already cluttered and your presentation
in court may be confusing as well. A well-organized Trial
Notebook is an efficient reference for organized presentation
and recording of Notes in court and becomes a useful resource
at every stage of the Trial.

B.2 Litigation Phase

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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In terms of preparation the essential activity here is to fine-tune


the requirements of each stage to the work that has already
been done in the Pre-Litigation Phase. One of the most
important aspects to keep in focus is the requirement of
adherence to certain procedural time-lines that guide the
parties as to when certain steps must be undertaken. A
practitioner must have in place a good diary and calendaring
system that can remind him of the critical dates in good time. 19
This is essential because at each stage an Advocate needs to
prepare, and if he is not reminded of up-coming events in good
time the delay would effect his ability to prepare. The LRCtz
Position Paper on the Review of the Civil Justice System
(2006) provides a simplified overview of the Critical Timelines
under the CPC:

CPC Provisions Relating to Timescale for Litigation:

i. O. IV Rule 3 CPC requires assignment of cases to take


place within a period of 96 hours from the time of filing.

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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v. At the discretion of the court, the plaintiff is required to file a


Reply to the Written Statement of Defence, if any, within 7
days from the date of receipt of the defence.

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.

viii. Speed Track is the categorization of civil cases in


accordance with their relative complexity and within what
period cases in particular category should be finalized.
There are four Speed Tracks as per O VIII (A) Rule 3(3),
namely:-

a. Speed Track One accommodates cases that are


relatively simple and which the interests of justice
require to be disposed of fast. Such cases should be
completed within a period not exceeding ten months
from the date of the commencement of the suit.

b. Speed Track Two covers normal cases that can be


disposed of within a period not exceeding twelve
months from the date of the commencement of the
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suit.

c. Speed Track Three is for cases that are considered


complex but are capable of being finalized within a
period not exceeding fourteen months.

d. Speed Track Four reserved for special or very


complex cases that do not fall within the other three
categories of speed tracks. They must be concluded
within twenty-four months.

ix. O. VIII (A) Rule 4 CPC prohibits a departure from or


amendment of a scheduling conference order unless the
court is satisfied that such departure or amendment is
necessary in the interests of justice.

x. Section 28 and O. XX of the CPC requires the court to


pronounce judgment in open court at once or on a future
date in which case notice of the day should be given to the
parties. This provision initially gave unnecessary leeway to
courts to procrastinate the delivery of judgment after the
completion of the hearing of a case. The CJTWG observes
that the loophole moved Parliament to pass an amending
provision that binds courts to pronounce judgment within 90
days from the date of closing hearing.

On the basis of these Timelines and Speed Tracks that have


been adopted it is possible to project, at least for guidance
purposes, the roadmap of the case.

Armed with all the material prepared in the pre-litigation phase


the Advocate can easily prepare for each Particular Step in the
Litigation Phase with relative Ease. If required to make
Applications for discovery the need thereof would have been
contemplated from the time Case Analysis was undertaken.
When parties are required to submit themselves to Court
supervised mediation (ADR) the well-prepared advocate would
already have his BATNA and can negotiate with relative
confidence. Similarly, in Pre-Trial Conferences the preferred
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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.

I propose not to ‘rub in the salt’ as it were, by being overly


repetitious, but I think the point is made. Any successful
litigation practice starts with preparation and is sustained by a
prepared advocate who is not only knowledgeable about his
client’s case but is confident enough to present it ably. Here I
recall the admonition of Prof. G. M. Fimbo who often told his
Advocacy Skills Class at UDSM some years back that ‘ 80% of
the Trial is won in the Advocates’ Chamber’. Diligence in
preparation is the essential key for success in litigation.

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