Advocacy Skills in Tanzania

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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
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                                                                                                 Tenga, R.W. ‘Trial Preparation’
                                                                                             TLS-CLE Mbeya Centre – 26.11.2010

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
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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and then each one of us can 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 decision

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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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.
                         ii. Unahimiza unyonyaji.


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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                     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 Denning 7, 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)

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

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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                                                            Tenga, R.W. ‘Trial Preparation’
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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
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‟
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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.

          Example D:

         Judge:  Mr. "X", what does your client really claim against
                 Defendant?
         Advocate: He claims.............

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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      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 core activities an advocates needs
to pay attention to in the course of the Trial.
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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 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
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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
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           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 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.

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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            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 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

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

13
     S. Blake, Effective Litigation, Ch. 15 op.cit. pp. 321 – 326.
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                                 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’
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          Fig. 2 – Case Analysis Matrix (Breach of Contract)15
            Legal                    Facts         Evidence to            Evidence for                Definition of
            Elements                 of the        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
            Foreseeability
            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


15
    Susan Blake, Effective Litigation, supra, at p. 213
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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              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
                                                                       Issues                      Brief Answer
                  Issues                    Conclusions
                                                                       Brief Answer                Facts
                  Conclusions               Facts
                                                                       Discussion                  Discussion
                  Discussion                Discussion
                                                                       Conclusion                  Conclusion


                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

17
     Visit their website at - http:// www.casesoft.com
18
     Susan Blake Effective Litigation. supra, Ch. 11 „Skills in Legal Writing’ pp. 238 – 239.
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         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 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.
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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
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            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
            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.



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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 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
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                  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
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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.

              ……………XXXXXXXXX…………….

				
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Description: Trial Preparation Paper presented to the Tanzania Bar Association Chapter in Mbeya, Tanzania on 26th of November 2010