tenga, ringo willy. 'trial preparation for advocates' tls-cle mbeya centre 26.11.10

TRIAL PREPARATION FOR ADVOCATES:

THE PRACTITIONER’S TOOLBOX

11/26/20101 Tenga R.W. 'TRIAL PREPARATION FOR ADVOCATES' TLS-CLE, Mbeya

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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.

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.


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Sources for Trial AdvocacyStatutory Sources: The Civil Procedure

Code 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

Literature B. D. Chipeta CIVIL

PROCEDURE 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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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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A. Of Trials and the Necessity of Representation Statutory &

Constitutional Basis F. Twaib, ‘The Legal

Profession in Tanzania’ Criminal Procedure Code

– S. 310 on the ‘Right of an Accused to be Defended.’

The Constitution - Article 13(6) (a) (Presumption of Innocence)

Case Law – Per Mwalusanya in Kassim Manywele vs. R

National Reports on the Right of Representation

The Msekwa Commission 1977 The Mbeya

Recommendation The Law Reform

Commission on Private Legal Practice


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A. Of Trials and the Necessity of Representation

Ethical Basis of Legal Professional Services.

Litigation Fairness; Competence; Loyalty; Confidentiality; Reasonable fees; and, Public service;

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


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A. Of Trials and the Necessity of Representation

Competence. 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

Lack of Preparation as incompetence

Criticisms from the Bench - Per Kalegeya, J. (as he then was)

Criticisms from the Law Reform Commission


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THE STRUCTURE OF THE CIVIL TRIAL

11/26/2010Tenga R.W. 'TRIAL PREPARATION FOR ADVOCATES' TLS-CLE, Mbeya

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The Civil Procedure Code Act

Orders I – XX – a Formalistic Structure of the Civil Trial is adopted that Starts with the INSTITUTION OF SUITS.

Ignores Pre-Litigation Activity.

The Civil Trial - Extended Pre-Litigation Phase

1. Meeting Client2. Research & Case

Analysis3. The Legal Opinion4. Advising

/Counseling5. Demand Notice6. Negotiation &

Settlement7. Drafting Pleadings

THE STRUCTURE OF THE CIVIL TRIAL


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The Civil Trial - Extended Litigation Phase

1. Pre – Trial Stagei. Filing Pleadingsii. Interlocutory

Applicationsiii. 1st PTCiv. ADR

2. The TRIAL Stagei. 2nd PTCii. Framing Issuesiii. Opening Statementsiv. Examination of

Witnessesv. Final Submissions

3. Judgment & Decree

Relating Preparation to the Trial Process

WHAT NEEDS TO BE ATTENDED TO AT EACH STAGE?

WHAT SKILLS ARE REQUIRED

B: Un-Packing Each Phase of the Civil Case Trial. - B.1 Pre- Litigation Phase


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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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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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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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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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Case Analysis (Law. Facts, Evidence & Procedure)

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 Contract

Agency

Express Terms

Implied Terms

Performance

Breaches

Causation of Loss

Foreseeability of Loss



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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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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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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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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

B: Un-Packing Each Phase of the Civil Case Trial. - B.2 Litigation Phase


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1. Pre – Trial Stagei. Filing Pleadingsii. Interlocutory Applicationsiii. 1st PTCiv. ADR

2. The TRIAL Stagei. 2nd PTCii. Framing Issuesiii. Opening Statementsiv. Examination of Witnessesv. Final Submissions

ALL STEPS BENEFIT FROM PRE- LITIGATION PREPARATION

C. THE PRACTITIONER’S TOOLBOX Refer to BLAKE:a) The Ability to identify Clearly and

specifically the objectives of in Client to work efficiently to achieve those objectives

b) The Ability to elicit facts from in dividends and from documents (Interviewing skills)

c) The ability to analyze facts comprehensively(fact management)

d) The ability to research principles relevant to a case efficiently (legal research)

e) The ability to advise on a case clearly and concisely whether in writing or orally (Opinion writing and advocacy)

f) The ability to explain a Case clearly, whether in writing or orally (Drafting & Advocacy)

g) The ability to settle a case, if that is in the Client’s best interest (Negotiation)

Further Skillsa) Good Communication

Skillsb)Numeracy Skills (Dealing

with Numbers)c) Maintaining Good Healthd)Maintaining Ethical

Integritye) Improving & Maintaining

Competencef) Etc.


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THANK YOU FOR YOUR ATTENTION!THANK YOU FOR YOUR ATTENTION!