TRIAL PREPARATION FOR

ADVOCATES:
THE PRACTITIONER’S TOOLBOX

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ADVOCATES' TLS-CLE, Mbeya Centre
TRIAL PREPARATION
 The role of an advocate in
representing a Client
 “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. “
 Blake, Susan Legal Advise &
Drafting 5th Ed. Chapter 1 p.4.
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ADVOCATES' TLS-CLE, Mbeya Centre
 The activities relating to Trial
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’.
 Mauet, Thomas A. “Trial
Preparation and Strategy” Ch. XI
in Trial Techniques, 7th Ed. Aspen
Publishers, NY, 2007 p. 483.
11/26/2010
Sources for Trial Advocacy
 Statutory Sources:  Literature

 The Civil Procedure Code  B. D. Chipeta CIVIL PROCEDURE

Act, Cap.
 The Evidence Act, Cap.
 The Criminal Procedure
Code Act, Cap. 20
 The Arbitration Act
Cap.15
 Other Procedural Statutes
 Civil & Penal Statutes
Generally
IN TANZANIA (Dar es Salaam
Univ. Press, 2002);
 B. D. Chipeta A MAGISTRATE’S
MANUAL (TMP, Tabora);
 B. D. Chipeta A HANDBOOK FOR
PUBLIC PROSECUTORS (3rd
Ed.);
 R. Kuloba JUDICIAL HINTS ON
CIVIL PROCEDURE (LawAfrica,
Nairobi, Kenya); etc.
 Lobulu, Ben THE PITFALLS OF
LITIGATION, Lobulu & Co Advs.
2004 Arusha

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ADVOCATES' TLS-CLE, Mbeya Centre
A. Of Trials and the Necessity of Representation
 Defining a Trial
 A trial is simply defined as
a process under which
disputes are authoritatively
determined. This process
enables the parties and the
decision makers to
distinguish truth from
falsehoods in any factual
situation and enable the
decision maker to make a
fair and just decision.
 Necessity of
Representation
 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

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ADVOCATES' TLS-CLE, Mbeya Centre
A. Of Trials and the Necessity of Representation
 Statutory &  National Reports on the
Constitutional Basis Right of Representation
 F. Twaib, ‘The Legal  The Msekwa
Profession in Tanzania’ Commission 1977
 Criminal Procedure Code –  The Mbeya
S. 310 on the ‘Right of an Recommendation
Accused to be Defended.’  The Law Reform
 The Constitution - Article Commission on Private
13(6) (a) (Presumption of Legal Practice
Innocence)
 Case Law – Per
Mwalusanya in Kassim
Manywele vs. R

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ADVOCATES' TLS-CLE, Mbeya Centre
A. Of Trials and the Necessity of Representation
 Ethical Basis of Legal  Litigation Fairness
Professional Services.  An advocate has a duty to
 Litigation Fairness; the Court, the Client, the
 Competence; opposite parties and the
public to represent the Client
 Loyalty;
with diligence and candour.
 Confidentiality; An advocate would not
 Reasonable fees; and, deliberately mislead the
 Public service; Court, raise frivolous issues,
delay court process,
disrespect the court, hide
material facts or
authoritative texts, etc
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ADVOCATES' TLS-CLE, Mbeya Centre
A. Of Trials and the Necessity of Representation
 Competence.  Lack of Preparation as
 The advocate presents incompetence
himself to the Client and  Criticisms from the Bench
the public at large as a - Per Kalegeya, J. (as he
person trained in law and then was)
as such professionally  Criticisms from the Law
competent to handle the Reform Commission
client’s matter. This
presentation generates
what is known as the duty
of competence

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ADVOCATES' TLS-CLE, Mbeya Centre
THE STRUCTURE OF THE CIVIL TRIAL
 The Civil Procedure  The Civil Trial -
Code Act Extended
 Orders I – XX – a  Pre-Litigation Phase
Formalistic Structure of 1. Meeting Client
the Civil Trial is adopted 2. Research & Case
Analysis
that Starts with the
3. The Legal Opinion
INSTITUTION OF 4. Advising /Counseling
SUITS. 5. Demand Notice
 Ignores Pre-Litigation 6. Negotiation & Settlement
Activity. 7. Drafting Pleadings

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ADVOCATES' TLS-CLE, Mbeya Centre
THE STRUCTURE OF THE CIVIL TRIAL
 The Civil Trial - Extended  Relating Preparation to the
 Litigation Phase Trial Process
1. Pre – Trial Stage
i. Filing Pleadings
ii. Interlocutory Applications
iii. 1st PTC  WHAT NEEDS TO BE
iv. ADR ATTENDED TO AT
2. The TRIAL Stage EACH STAGE?
i. 2nd PTC
ii. Framing Issues
iii. Opening Statements
iv. Examination of Witnesses  WHAT SKILLS ARE
Final Submissions
v.
REQUIRED
3. Judgment & Decree

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ADVOCATES' TLS-CLE, Mbeya Centre
B: Un-Packing Each Phase of the Civil
Case Trial. - B.1 Pre- Litigation Phase
1. Meeting the Client.
 Organisational Framework
 Client Interview
 Study Client’s Documents in Advance
 Make Some Notes
 Make a Checklist of Questions to be Clarified
 Three Essential Skills
 Interviewing Skills (Listening Skill & Questioning
Skills)
 Advise/Counselling Skills (Basic Information –
KYC; Conflict of Interest Check; Time Bar; etc)
 Retainer Agreement Skills (Remuneration)?

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ADVOCATES' TLS-CLE, Mbeya Centre
B: Un-Packing Each Phase of the Civil
Case Trial. - B.1 Pre- Litigation Phase
1. Meeting the Client (Cont.)
 Deliverables
 Client Interview Notes
 Witness Statement(s)?
 List of Tasks to be Undertaken
 Timelines (Diary, Calendaring, etc)
 Open a Case File

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ADVOCATES' TLS-CLE, Mbeya Centre
B: Un-Packing Each Phase of the Civil
Case Trial. - B.1 Pre- Litigation Phase
2. Research on Facts, Law and Case Analysis.
 Mastery of the Factual Detail
 System of Collecting Facts
 Fact Management
 Establish a List of Sources (witnesses; documents; real
evidence (eg. Objects damaged, artifacts, paintings, etc.);
electronic evidence; admissions, expert witnesses, judicial
notice)
 Make Some Notes on Information Gathered.
 Record & File Information gathered from each Source
 Essential Skills
 Fact Management Skills
 Research Skills
 Identification of Factual Issues

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ADVOCATES' TLS-CLE, Mbeya Centre
B: Un-Packing Each Phase of the Civil
Case Trial. - B.1 Pre- Litigation Phase
2. Research on Facts, Law and Case Analysis.
 Legal Research
 Establish the Law Applicable
 Library Research
 Establish Statutory Sources
 Case Law
 Make Some Notes on Information Gathered.
 Record & File Information gathered from each
Source
 Essential Skills
 Identification of Legal Issue(s)
 Research Skills

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ADVOCATES' TLS-CLE, Mbeya Centre
B: Un-Packing Each Phase of the Civil
Case Trial. - B.1 Pre- Litigation Phase
2. Research on Facts, Law and Case Analysis.
 Case Analysis (Law. Facts, Evidence & Procedure)

Legal Elements Facts of the Case Evidence to Support Evidence for Other Definition of any
Client Side or Not Yet Issues between the
available Parties
Existence of
Contract
Agency

Express Terms

Implied Terms

Performance

Breaches

Causation of Loss

Foreseeability of Loss

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ADVOCATES' TLS-CLE, Mbeya Centre
B: Un-Packing Each Phase of the Civil
Case Trial. - B.1 Pre- Litigation Phase
3. THE LEGAL MEMORANDUM/ OPINION
 Purpose
 To Create a Comprehensive and Analytical Basis of Advising
the Client & a Plan for Proceeding with the Case
 Structure of the Legal Opinion
 Facts
 Issues
 Brief Answer
 Discussion
 Conclusion
 Essential Skills
 Writing Skills

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ADVOCATES' TLS-CLE, Mbeya Centre
B: Un-Packing Each Phase of the Civil
Case Trial. - B.1 Pre- Litigation Phase
4. THE DEMAND NOTICE
 Purpose
 To Engage the Opposite Party and give a Specific Demand for
remedying the Breach
 Structure of the Demand Letter
 Facts
 Issues
 The Claim
 Legal Basis of the Claim
 Demand to Settle
 “Without Prejudice”
 Essential Skills
 Writing Skills
 Drafting Skills

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ADVOCATES' TLS-CLE, Mbeya Centre
B: Un-Packing Each Phase of the Civil
Case Trial. - B.1 Pre- Litigation Phase
5. THE DRAFTING OF PLEADINGS
 Purpose
 To lodge a legal claim for determination in a formal civil action.
 Structure of Pleadings
 Determined by the CPC (ORDER VI: Pleading Generally;
ORDER VII: Plaint; ORDER VIII: Written Statement,
Set-off & Counterclaim)
 Essential Skills
 Writing Skills
 Drafting Skills

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ADVOCATES' TLS-CLE, Mbeya Centre
B: Un-Packing Each Phase of the Civil
Case Trial. - B.1 Pre- Litigation Phase
6. THE TRIAL NOTEBOOK
 Purpose
 To have a System in Place that is easily accessible to the Advocate and
keeps only the Essential Trial Documents in a Systematic Manner
 Structure of Trial Book
 Determined by the Nature of the Case
 pleadings,
 witness lists,
 exhibits lists,
 issues,
 opinions,
 Notices,
 court rulings,
 legal authorities,
 Trial Notes,
 etc.
 Essential Skills
 Case Management Skills

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ADVOCATES' TLS-CLE, Mbeya Centre
B: Un-Packing Each Phase of the Civil
Case Trial. - B.2 Litigation Phase
1. Pre – Trial Stage
i. Filing Pleadings
ii. Interlocutory Applications
iii. 1st PTC
iv. ADR
2. The TRIAL Stage
i. 2nd PTC
ii. Framing Issues
iii. Opening Statements
iv. Examination of Witnesses
v. Final Submissions
ALL STEPS BENEFIT FROM PRE- LITIGATION
PREPARATION

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ADVOCATES' TLS-CLE, Mbeya Centre
C. THE PRACTITIONER’S TOOLBOX
 Refer to BLAKE:  Further Skills
The Ability to identify Clearly and specifically
a)
the objectives of in Client to work efficiently
a) Good Communication Skills
to achieve those objectives
b) Numeracy Skills (Dealing
b) The Ability to elicit facts from in dividends
and from documents (Interviewing skills) with Numbers)
c) The ability to analyze facts c) Maintaining Good Health
comprehensively(fact management)
d) The ability to research principles relevant to a d) Maintaining Ethical Integrity
case efficiently (legal research)
e) The ability to advise on a case clearly and
e) Improving & Maintaining
concisely whether in writing or orally Competence
(Opinion writing and advocacy)
f) The ability to explain a Case clearly, whether f) Etc.
in writing or orally (Drafting & Advocacy)
g) The ability to settle a case, if that is in the
Client’s best interest (Negotiation)

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ADVOCATES' TLS-CLE, Mbeya Centre
THANK YOU FOR YOUR
ATTENTION!