Tenga, R.W. 'Trial Preparation for Advocates' TLS -CLE Mbeya Centre (FINAL)02

Page 1 of 25Tenga, 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



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.



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.



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.



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

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



govern a particular situation, is indispensable.”8 (Emphasis Added)

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

8 Msekwa Commission Report. p. 157.



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 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 clientJudge: 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:

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



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.

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 rightJudge: 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 hereJudge: 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 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:





The Chart goes through 22 steps I may re – define the major phases of a Civil Trial as follows;

Pre – Litigation Litigation

o Pre – Trialo Trialo 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 PhaseThe 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 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.

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 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

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)



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. 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

11 See LRCtz ‘Position Paper on the Review of the Civil Justice System’ op cit.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



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.

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

13 S. Blake, Effective Litigation, Ch. 15 op.cit. pp. 321 – 326.



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 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:

14 Order XI of the CPC ‘Discovery and Inspection’



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

Legal Elements

Facts of the Case

Evidence to Support Client

Evidence for Other Side or Not Yet available

Definition of any Issues between the Parties

Existence of ContractAgencyExpress TermsImplied TermsPerformanceBreachesCausation of LossForeseeability 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

15 Susan Blake, Effective Litigation, supra, at p. 213



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 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

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.17

Visit their website at - http:// www.casesoft.com



IssuesConclusionsDiscussion

ConclusionsFactsDiscussion

IssuesBrief AnswerDiscussionConclusion

Brief AnswerFactsDiscussionConclusion

Legal writing theorists are said to prefer the 3rd and 4th formats. Susan Blake suggests the following structure for a Legal Opinion:18

1) Introduction2) Summary of Advice3) Cause(s) of Action4) Defences5) Remedies6) Other points7) 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 NoticeAlthough 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.



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 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.

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

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.



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.

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 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 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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