CHAPTER THREE: PRE-LITIGATION, PREPARATION & SKILLS

3.0 INTRODUCTION

You should be familiar with

Meaning of Pre-Litigation
Meeting with Client and Counselling
Research
Case Analysis
The Legal Opinion
The Demand Notice
Dispute Resolution
Choice of Forum
Drafting Court Statements

3.1 MEANING OF PRE-LITIGATION

Pre-litigation is defined as any activity that happens regarding a legal claim prior to a lawsuit being official field. Pre litigation involves 8 aspects

Meeting with Client and Counselling
Research
Case Analysis
The Legal Opinion
The Demand Notice
Dispute Resolution
Choice of Forum
Drafting Court Statements

3.1.1 MEETING WITH CLIENT AND CONSELLING

Meeting is when two or more people come together to discuss one or more topic, often in a formal or business settling but meetings also occur in a variety of other environments. The first sub-stage is that of meeting the client. These are certain organizational framework that enable the client to meet an attorney with relative case. He may have made an appointment and though 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 client interview. Where there is best advised to study the filed documents.

Meeting with client involving three aspects

Interview Skills
Counselling
Establish of Advocate/Client Relationship

3.1.1.1 INTERVIEW SKILLS

Is the ability of an advocate to get and give information and decided what you are going to do with the information you have get.

Purpose of Interview

To form an attorney-Client relationship
to learn the client goals
To learn as much as the client knows about the facts

Steps for Interview

Preparation
Introduction & interview Guide
Listening Skills
Questioning Skills
Taking Notes & Keeping Records

Step 1: Preparation

You might have spoken with the client briefly over the telephone when the client made the opportunities otherwise in a well-run effective the several will have asked the client the nature of the problem the client bring to you. Some clients decline to say but most of the time you will have before had at a vatic sense why the clients wants to see you. Where there is prior notice and save information has been sent to advocate is best adverse to stay the filled documents and have a initial assessment of the case. A checklist questions must be prepared before had that will. Preparation invloves also aspects:-

Preparing the environment
Preparing Yourself

PREPARING THE ENVIRONMENT

to speak in private without our conversion being overhead by either in the room passes by people in a outer offices
not to be interrupted by other people, telephones
to have enough time to discuss the matter without others waiting room
to have the solicitor full attendance
to sit is reasonable conflict
no physical barrier between us
not to be kept waiting

PREPARING YOUSELF

What you an plan in the internal structure so that you can came of the issues, professionally and comprehensively. For example the client must have the opportunity to say what he/she need to say. You need to provide advice on the legal issues. You also need to alert the client to financed implication of taking the case and confirm that the client wants to instruct you.

In order to ensure that nothing of imperative is left out, we suggest you see the WASP approach to planning, structing and carrying. Out your interview. WASP is an acronym which brakes the four parts

Welcome

Acquire information

Supply information and advice

Part

STEP 2 INTRODUCTION AND INTERVIE GUIDE (WELCOME)

At this stage it is useful to let your client know what you to expert from the meet. You may wish to tell them

the purpose of the meeting-that is to get of the situation from your client , give legal advice, discuss options and provide information on costs
Information on the service levels your firm provides such as how frequently the client can expect to be updated on the progress on their case.

Example:

How can I help?

Let talk about what brings you here today?

STEP 3 LISTERNING SKILLS

Listening is an active process and it is about analysis the information you receive and use that information to construe the framework of your understanding.

As someone speaks you are constantly checking and modifying your understanding of the situation
A lawyer you have developed certain cognitive framework while enable you to understand for example the law negligence or employment
We can Consider listening skills in three components

(a) Checking what the clients is saying against your frameworks of understanding

(b) Checking that you have understand by summarizing and reflecting back what you have heard

So far we have contracted or getting information from the client which will help us understand the factual and legal aspects of their case.

STEP 4 QUESTIONG SKILLS

Developing your questioning techniques gives you the best choice of getting at all the relevant information: To encourage you to speech

(a) Use open questions

eg. what, why, how, when, where, what happened? Why do you think that

(b) Invite your client to talk

e.g Tell about

-I’d like to hear little more about

-Please go on

(d) Summon periodically to check your understanding and encourage your client to correct any misunderstand so the situation so far is that…..

Have I get right?

(e) Don’t be afraid of silence

Also use Checklist

What’s the problem?
What happened?
Where did the accident takes place?
When did it take place?
Who is your employer?
What is the injury?

STEP 5: TAKING NOTES AND KEEPING RECORDS

To be an effective interviewer you need to pay attention to your notetaking skills.
Nothing is more off-putting to a client then the sudden scribing decision of something they have just said
On other hand, you need to be able to recall accurately the details of the interview

We suggest you develop the following techniques

Explain to your client at the beginning of the interview that you need to take notes until to recall the details of the case for further action
Take a listen first, approval this mean you have checked your understand of what they are telling you at each stage of the interview, then you can note it down
At the end of the interview, use your notes to framework the information this will enable you to check that your notes are an accrual representation of what took place
As soon as possible after the interview, write up your notes clearly and accurately. It is implied to do this because notes taken at the time may service your short term memory well but may cause days or even well later
Keeping accurate notes is very important part of your work. You will rely on them to supply information on which further action may be based. If they are not accurate, you may make mistakes or irritate your client by having to go back to them to ask again for information they have already give you.

Special Problem in Client Interview

Ethics in client interviewing
When the client is distraight
Handling possible client fabrication
Negotiating fee agreement

3.1.1.2 COUNSELING

Is the provision of professional assistance and guidance in resolving personal or psychological problems. Counseling is the process in which lawyers help clients reach decision. There are parts to counseling.

Identifying client goal (preparation)
Meeting with client

I. IDENTIFYING THE CLIENT GOAL (PREPARATION)

Includes identifying the clients goals and developing two or more alternative potential solutions that to varying degrees might accomplish those goals

II.MEETING WITH CLIENT

Meeting with the client in which the lawyers explains the potential solutions, so the client can choose between or among them.

Explain how to conduct that meeting
A simple example occurs when a defendant makes a pre trial offer to settle. For the plaintiff one potential solution is to accept the offer. Another is to go to trial in hopes of getting more there.
Advice is a broader concept. Counseling is a form of advice, but not all advice is counselling. For example, suppose a judge has just preliminary enjoined a client: the client askes you whether such an order can be appealed and you say yes. You have provided advice because you have decode some of the mystery of the law for layperson. But you have not counselled because you have not helped the client make a decision here whether to appeal this preliminary injunction. The decision would require weighting the advantages, costs, risks and chances of success of another option.

Counselling and Advice Categories into two

(a) Transaction

(b) Dispute Settlement

A. Transaction

For example, a client buying land on which to build a shopping center would want to know how to structure the transaction so as to cause the least amount of disagreement with the tax, land use and warrant authoritative.

B. DISPUTE RESOLUTION

Is to find a way for both parties to improve their situation by collaborating (which often involve a transaction).

Challenges in Counselling are

Creating options
Working out each option precisely
Clarity with the client
A helpful professional affect

3.1.1.2 ESTABLISH OF CLIENT RELATIONSHIP

The third element here is that of instructions to the Advocate-the retainer. Much as one cannot be exact on what would be the trial 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 adversely be reduced into writing in the form of a retainer agreement.
A standard form agreement should adhered of law offices standard documents and end time may be customized retains arrangement. The advocate in drafting the retainer agreement needs to conversant with required provision of Advocates Act.

DRAFTING OF RETAINER AGREEMENT

RETAINERSHIP AGREEMENT FOR PROFESSIONAL LEGAL SERVICES

THIS RETAINERSHIP AGREEMENT is made the … day of ……………… 20…….

between ……………………………with their registered Chambers situate at …………………. (hereinafter called “the Firm”) of the one part and …………………….. with their registered offices situate at ………………………………….. (hereinafter called “the Client”) of the other part.

WHEREAS

The Client desires to obtain professional legal services on a retainer basis (hereinafter called “the Services”);
The Firm possesses the necessary skills, capacity and competence to provide the services which the Client desires or may require; and
The Client is agreeable to appoint the Firm to provide the services and the Firm is agreeable to serve the Client subject to the terms and conditions set forth hereinafter.

NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:

ARTICLE 1

APPOINTMENT

The Client appoints the Firm as its professional legal advisor and the Firm accepts the appointment to serve the Client subject to and in accordance with the terms and conditions appearing hereinafter.

ARTICLE 2

CLIENT’S INSTRUCTIONS

The Client will from time to time instruct the Firm either in writing or orally concerning the type of services the Client requires from the Firm.
- In the case of oral instructions the Client will, as soon as possible, confirm in writing with or without any amendments the record of the Client’s such oral instructions as will be prepared by the Firm for reference purposes.

ARTICLE 3

SCOPE OF SERVICES

The Firm, subject to the terms and conditions set forth in this Agreement, will provide the services in respect of all matters with regard to which the Client will require legal advice and/or representation, etc.

The services which are to be provided by the Firm to the Client will cover both contentious and non-contentious matters.
For the purposes of this Agreement the expression:
“contentious matter” means a matter the resolution of which involves court, mediation, conciliation or arbitration proceedings;
“non-contentious matter” means a matter the resolution of which requires no recourse to court, mediation, conciliation or arbitration proceedings; and
“court” means and shall include any tribunal established, recognized or permissible under any applicable written law or set up for the purpose of resolving disputes generally or a dispute or disputes preferred by the parties hereto in accordance with the provisions of this Agreement;
“month” means a period of thirty days whether based on a calendar month or otherwise;
“Parties” means Parties to this Agreement;

ARTICLE 4

FEES AND EXPENSES

4.1 Bases for charging Fees and Expenses for Services

As consideration for the services to be provided to the Client by the Firm, the Client will pay in the currency of Tanzanian shillings.
the agreed Retainership Fee plus other applicable statutory levies and, where applicable, expenses; for services covering all non-contentious matters, and
fees based on clause 4.3.1 hereof.
Lumpsum Retainership Fee for Services in respect of All Non-Contentious Matters
- The Client will pay to the Firm the proposed [“agreed”] monthly lumpsum retainership fee (hereinafter referred to as “the Retainership Fee”) in the proposed [“agreed”] sum of Tanzanian shillings ………………………………as consideration for services in respect of all non-contentious matters.
- Subject to Clause 4.2.4 hereof, the Retainership Fee aforesaid will be paid by the Client regardless of the number of non-contentious matters which the Client will in any month refer to the Firm and, vice versa, performance of the services by the Firm will be effected regardless of the number of matters referred to the Firm by the Client in any month. The services aforesaid will include but not be limited to the following matters:

(a) stamping of Client’s documents, excluding payment of any duties or any other charges whatsoever thereon;

(b) general legal correspondence on behalf of the Client, including issuance of or replying to demand notices/letters for enforcing or resisting claims;

(c) making of inquiries in Government Departments or other Public Authorities on behalf of the Client in respect of any matter as instructed by the Client;

(d) consultations by the Client on any matter as desired by the Client;

(e) registration of Client’s documents, excluding payment of any registration charges whatsoever therefor;

(f) conducting searches at various registries on behalf of the Client in respect of any matter, excluding payment of any search fees or charges whatsoever therefor;

(g) filing of returns and other documents on behalf of the Client, excluding payment of any charges therefor;

(h) representing the Client in any matter which is not subject to court, mediation, conciliation or arbitration proceedings for a duration not exceeding three hours including transit time to and from the Firm’s Chambers per given matter or occasion.

(i) issuing caveats or public warnings in the Government Gazette and/or the Press for the protection of the Client’s business legal interests, etc., excluding payment of any charges whatsoever therefor;

(j) alerting the Client about any relevant regulatory matter or requirement that ought to be complied with or taken advantage of either upon request by the Client or on the volition of the Firm;

(k) compiling advice for the Client by way of legal opinions on different matters upon request;

(l) reviewing various internal disputes or claims and assisting the Client where possible to reach in-house amicable settlements;

(m) drawing up Memoranda and Articles of Association or Trust Deeds for incorporation of companies or registration of trusts or doing any other work of similar nature, excluding payment of any charges therefore.

4.2.3 The Firm upon signing this Retainer Agreement will invoice the Client for the first amount of the Retainership Fee and, subsequently, the Client will automatically remit payment of the Retainership Fee after every thirty (30) days. The Firm will acknowledge payment of the Retainership Fee amounts by issuing receipts to the Client.

4.2.4 In the interest of achieving mutuality of rights and obligations, the Parties hereto agree and commit themselves to review the level of the current Retainership Fee every end of 12 months from the execution of this agreement.

It is expressly understood that the Retainership Fee as agreed from time to time, will cover the services performed by the Firm in respect of all non-contentions matters relating to or arising from the Client’s business or businesses within the whole of Tanzania:

Provided that expenses such as transport, hotel accommodation, meals, communication, secretarial bureau services which may arise in connection with services involving travel outside Dar es Salaam City will be separately charged by the Firm and paid for by the Client on imprest-advance basis, subject to being accounted for by the Firm within five (5) days of return to station by the Firm’s staff.

For the efficient performance by the Firm of the services stipulated under sub-Article 4.2.2 (there will be continuous liaison with the Client through the Firm’s Managing Partner or, in his absence, any other Partner or Advocate designated in that behalf in writing by the Managing Partner.

4.3 Fees and Expenses for All Contentious Matters

4.3.1 Fees for attending to claims, disputes or other matters on behalf of the Client be it before courts (including tribunals), mediators, conciliators or arbitrators will be charged for based on ad hoc basis ( work to work basis). The guiding principle will be the higher the value of the subject matter the lower the percentage chargeable and vice versa..

4.3.2 For litigation, mediation, conciliation and arbitration proceedings, which involve long time periods, the Client will deposit with the Firm the applicable assessed fee amounts in full or partly and the fees so deposited by the Client, pending completion of the relevant services by the Firm, will be held in the Firm’s Client Account and will be drawn upon on completion of the services:

Provided that any part or balance of the fees not so deposited shall be deposited by the Client in advance of completion of the relevant services within the time agreed between the Parties hereto.

4.3.3 The Firm may, in certain cases, request the Client to deposit sums of money (hereinafter called “the Expenses Account”), which the Firm will draw upon to meet relevant running expenses such as transport, hotel accommodation, stationery, court charges, courier services, stamps, faxes, e-mails and any other incidental costs, which expenses will not be covered by the professional fees charged by the Firm:

Provided that the Firm will from time to time submit to the Client statements with details of expenditure out of the Expenses Account and on finalization of the cases or matters in question any positive/negative balance will be accordingly refundable/reimbursed to the Client/the Firm, as the case may be.

Settlement of Invoices
- Except for the Retainership Fee which will be invoiced by the Firm and paid every end of the month by the Client as provided for under clause 4.2.3 hereof in respect of non-contentions matters, the Client will be invoiced from time to time for fees (and expenses, if any), in respect of the services rendered in connection with contentious matters.
- The Retainership Fee amounts and invoices for fees and expenses, if any, for services rendered in respect of contentious matters will be settled by the Client net of any bank charges within a reasonable time and, in any case, not later than fourteen (14) days from the dates of receipt of the said invoices by the Client or end of every thirty (30) days in connection with remitting the Retainership Fee, as the case may be.
- The current levels of the Retainership Fee and the General Scale stipulated hereinabove may be varied by mutual consent or agreement by the Parties hereto.

ARTICLE 5

GOOD FAITH AND CLIENT/LAWYER CONFIDENTIALITY

5.1 The Parties hereto bind themselves that their respective actions will be guided by the principles of strict respect for each other’s rights and interests, frankness, honest dealing and good faith.

5.2 The usual Client/Lawyer confidentiality shall apply to dealings under this Agreement.

ARTICLE 6

LAW APPLICABLE AND DISPUTE SETTLEMENT

6.1 This Retainership Agreement shall be governed by and be construed in accordance with the laws of the United Republic of Tanzania.

6.2.1 The Parties hereto bind themselves to resolve any dispute or difference that may arise between them or touch on the construction of this Agreement by mutual consultations in the first instance.

If any dispute or difference remains unresolved for 45 days despite mutual attempts at amicable settlement any such dispute or difference shall

be referred by either Party to arbitration and in such event:

(a) each Party will nominate an arbitrator and the two arbitrators, so nominated, will appoint a third arbitrator who shall be the umpire; and

(b) the arbitration panel will adjudicate the dispute or difference in Dar es Salaam or at any other agreed venue in Tanzania in accordance with the Tanzania Arbitration Act (Cap. 15), as amended from time to time.

6.2.3 The decision of the arbitration panel shall be final and binding on the Parties.

ARTICLE 7

VALIDITY AND TERMINATION

7.1 This Retainership Agreement will become valid and effective after:

being signed by the both Parties; and
the Firm has raised an invoice for the first Retainership Fee amount and the Client has paid fully the total amount,

7.2 Should there be any cause for either Party to wish or decide to terminate this Retainership Agreement at any time while it is in force:

(a) the relevant Party shall serve to the other Party a three (3) months notice stating in writing clearly the grounds of the notice; and

(b) upon expiry of the said notice period if the concerned Party still so wishes, the Retainership Agreement shall stand terminated.

7.3 In the event of termination of the Retainership Agreement as provided for in Sub-Article 7.2 the Parties will square up the affairs between them including settlement of any outstanding account or accounts.

While this Retainership Agreement is in force the Firm will be bound to provide to the Client the various services stipulated herein on a priority

AS WITNESS the representatives duly authorized to sign this Retainership Agreement on behalf of the Parties hereto have set their hands to this Retainership Agreement at Dar es Salaam on the dates mentioned against their respective signatures.

FOR AND ON BEHALF OF:

……………………………………

Name: …………………………………..

Signature: ……………………………………..

Qualification: ………………………….

Dated this … day of …….., 2020

WITNESS

Name: ……………………………………..

Signature:……………………………………

Qualification: Partner

Dated this … day of ……., 2020

FOR AND ON BEHALF OF:

SOFT –TECH CONSULTANTS LTD

Name: ………………………

Signature: …………………………………..

Qualification: ……………………………..

Dated this … day of ………………, 2012

WITNESS

Name: ……………………………………….

Signature:……………………………………

Qualification: ………………………….

Dated this ….. day of ………. 2012

CHECK THE FOLLOWING THINGS OF ESTABLISH RETAINERSHIP

Competence Check
Conflict Check
Opening the client file

1. COMPETENCE CHECK

Ability to handle the case

2. CONFLICT CHECK

If you find out there is conflict better advice to find another lawyer

3. OPENING THE CLIENT FILE

The file opening checklist is not new client matter form. The document only addresses information to feed into office management systems. It is not intended to deal with the substantive facts and issues relating to the client matter.

THINGS TO INVOLVES

Client Name and client file identifier
Crucial Date in the matter
Client (s) matter and opposing party

3.1.2 RESEARCH

Research is finding and gathering of authoritative that bears on the question of law. As far as advocacy skills is concern here involves

(a) Research explaining the Facts

(b) Research on exploring the law

A. RESEARCH ON EXPLORING THE FACTS

Facts means an existing thing. Section 3 of the Evidence Act [Cap.6 R.E 2019] defined fact include (a) anything, state of things or relation thing, capable of being perceived by the senses (b) any mental condition off which person is conscious.

The rule of facts in legal action can not be underestimated, fact are the gist of legal disputes. Hence one of the basic function of trial preparation is mastery of factual detail.

Susan argues that this is a critical skill that advocate often ignore at their peril. Yet facts are not as simple as they seen. Any factual situation is problematic as the means source of proof is the human person whose ability to comprehend any set of facts is belonged by several problems which include

lack of factual resource
unreability and inaccuracy of factual source
Interpretation problems
Ambiquity
Assumptions
Contradictions
Irrelevancy
Pre-Judgment

Due to the Challenge of Managing facts it is important that an advocate should have a system in place for collecting and checking facts. In short, a system of information gathering and management in collecting information must be revealed and kept in a manner that will enable the advocate to retreive the information easily.

Where an Advocate visit a scenario of an incident that is relevant to the case he ought to make notes. If other documents and exists are collected the save method should be use with notes on the exist properly filed and documents photocopy. The sources vary but typical sources include

Witness documents
real evidence
electronic evidence
admissions
expert witness
judicial notice
matter of general knowledge

Factual evidence so collected must be analyzed though a two stage process

To decide what facts are most important in relation to the issues of the case
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 field to in order to identify a cause of action.
The factual material gathered must not only identified properly but must not only identified properly but must be able to prove every element of legal claim.

B.RESEARCH ON EXPLORING THE LAW

Law refer to system of rules that govern such fact. The research into the law that govern the disputes because 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 mood for the trees.

Facts
Law
Procedure and Evidence

Once the facts are collected as stated one has to be identify issues and see how they relate to the law. The statute law and case law all provide legal framework that are readily recognizable. These in civil auctions may be

Contract
Tort
Misrepresentation

Blake uses these three types of framework to show how the contribution of factual and legal analysis level to the identifies of the appropriate cause of action. Lets us adopt two examples from the contract and tort

Elements of Breach of Contract

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
Foreaseability of Loss

2. Elements of 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 accurate a cause of action. The process does not came 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. May be thus is the type of evidence that may be obtained from the opposite party, which means you must issue interrogatories or apply for discovery. This may be an essential preparatory stop 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 needed to be proved though credible audience that on time has to be admissible in a court of law though appropriate procedure. Here one must consider the relevance law of Evidence on the other hand the application of procedural law (The Procedure, Criminal Procedure on the other hand). So we have the four elements: Law, facts, evidence and procedure.

Legal Elements	Fact of the case	Evidence Support	Evidence for other side or Not Yet Available	Definition of any issue between the parties
Existence of Contract
Agency
Express terms
Performance
Breaches
Causation of Loss
Foreseability of Loss

If all the material facts exist to support a cause of action and these facts though evidence support the client case (good facts) as opposed to those facts that support the adversary case (bad facts) and the unavailable facts, though inference, support your client case, then the probably of your client having a better chance of winning the case is higher. The analysis if carried with diligence it my 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 have a fair view of your soft under belly and you may discover earlier on methods of countering the attacks: to see whether the cause of action is appropriate given the fact ual basis of the case and finally it enables to carry out the subsequent steps with case as you have actually done as SWOT analysis of your case

3.1.3 CASE ANAYSIS

Is a set of processes to enable the advocate to identify legal issues:

To identify all possible relevant facts
To discover persuasive argument

TOOLS FOR CASE ANALYSIS

Case theory
Case theme

CASE THEORY

These are the facts which can be proved or disproved at trial or This is the best explanation of the available evidence logically showing why your client should win the case. A case theory consists of

Legal theory
Factual theory
Persuasive theory

A. LEGAL THEORY

The law that entities you win

Jury instructions
Statutes
Case Law

B. FACTUAL THEORY

Is what happened in the case ways of getting a handle on the facts

Chronology
Proof Chart
Facts not conclusion
Information that can be drawn from the facts
If true, what else be true
Hard facts versus soft facts
Motives-why did a person Act in the way claimed
Common sense

C. PERSUASIVE THEORY

Why should you win as a matter of fairness and justice want to identify the Hero.

TEN COMMANDMENTS OF GOOD CASE THEORY

Short
Simple
Satisfies legal requirements
Causative within facts
Emotionally apppealing places
Explain motives
Tells a Story
Use impact words and phrase
Limited to one theory You must believe it

EXAMPLE OF CASE THEORY

The defendant drove the car negligence which had no good maintenance and did not see the three people riding bicycle at the road side. At the result of this negligence, he knocked then all and one of them was killed therefore he is entitled to compensation.

CASE THEME

This is conveying thread that explains your theory and information all aspects of your case presentation. The case theme shall have emotional elements and must be memorable to the court. The case theme is that can rule the court think positive on your emotions. The purpose of the case theme is to try to have major impact of the court. The one sentence distillation make sure it cannot be flipped.

How to do it

Select your best- Good facts and your worst- Bad facts

Brainstorm about Good facts Bad facts

Facts-Not Conclusion
Don’t argue at this point cuts off creativity
Identity our (Arbitrary) Best worst facts

Now we can argue about the factors

It is admissible
It it understandable
It is believable
It is a hard or soft
Do we need to draw any inferences
Are the inferences reasonable
If this fact is true what other facts must be true (are they)?
Is it consist with common sense
Does it square with the motive as with expect
Will it be encountered by other evidence
In short, why should the judge or jury believe the best facts & disbelieve the worst facts

Apply the Grandmother

Develop a theme-
Make sure your theme cannot be flipped

Stages of Case Analysis

Stage One: Every factual Dispute has at list true version of story to be told or even more. The trial process is about sorting out the reliable and the occurrence of factual material apart from lies and evasion. About evaluating and making judgment and predictions about human behavior not about law.

The legal framework

Issue Analysis
Chronology
Cast of Characters
Create a full issue analysis

Stage two: Case Analysis

A case should

Set up creative brainstorming session and pulling the facts apart (mindmap)
Break the material into individual facts
List the good facts for your case
List the Bad facts for your case

Make sure the Brain storming is clear destruct accurate and comprehensive
Support and improve your Good facts
Address the Bad Facts
Make some hard judgment about some worst facts and best facts
Lack key facts to the key question

Stage Three: The Theory of Case

A theory of the case is a narrative and an analytical account- A single paragraph which summarize the client positions and from which you can determine every action in the trial. It is a way of verbalizing our scenario of success.

In order to win a case an advocate must provide a set of facts which shows a better understanding of what happened that the opposite part. It means the advocate’s narrative must be

Accurate
Believable
Persuasive
Proper

A case theory goes beyond the legal language of pleadings and issues, a theory aims at explaining to the fact finder why he should prefer one stay of the case over the other-it is about the art of pursuation

Example of case theory

The careless driver not only caused death of the deceased but also prevented deceased forming from any compensation and left them suffering for all this time.

Advantages of Theory of case

Directs the investigation
Direct the pre trial preparation and practice
It places all the witness in the contents of your case
It helps to develop or limit the scope of cross examination
It serves as the yard stand against all new information in the case can be judged
During oral submission you might choose to open the pleading but you must chose in the theory of the case.

3.1.4 THE LEGAL OPINION OR LEGAL MEMORANDUM

Meaning of legal opinion is art of writing opinion on implementation to action to be taken by client. Legal opinion is usually a summary what the legal advice sees as the status of the case. Legal opinion may be written at a very early stage of advice whether the matter brought to an advocate is actionable. Later in the process legal opinion may be saluted for a variety of reasoning including

advising whether an action should be initiated]
advising on the progress of the case
advising an remedies
advising on settlement

Parts of Legal Opinion

Heading
A summary of relevant facts
Identification of Legal Issues
a discussion of the law relevant to legal issues
application of that law to the facts
a conclusion that is responsible to the legal issues

Various Format of Legal Opinion

U.S Model
U.K Model
Other Model

FORMAT 1

Facts
Issues
Conclusion

FORMAT 2

Issues
Conclusion
Facts
Discussion

FORMAT 3

Facts
Issues
Brief Answer
Discussion
Conclusion

FORMAT 4

Issues
Brief Answer
Facts
Discussion
Conclusion

Legal writing there said to prefer the 3rd and 4th format Susan Blake suggests the following structure for a legal opinion

Introduction
Summary of Advice
Cause of action’
Defences
Remedies
Other points
Next Steps

DRAFTIG LEGAL OPINION

………………………

P.O.BOX 581

DAR ES SALAAM

27TH NOVEMBER 2020

CAMPANY SECRETARY

P.O.BOX

DAR ES SALAAM

Dear Sir/Madaam

RE: LEAGAL OPINION………………………………………………………………………………………………………………………………………………………………..

1.0 INTRODUCTION

Your letter dated ………………..with reference No……………….please find herewith our advice on the above matter. After having duly consideration the facts and law here is the legal avenue available.

2.0 FACTS

………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………3.0 ISSUES

4.0 LAW/DISCUSSION

5.0 CONCLUSION

We hereby opinion and advice responsiblity

…………………………………………………………………………………………………

3.1.5 DEMAND NOTICE

Demand notice is a formal letter from a lawyer or an advocate on behalf of a client demand payment or some either action from another party or person. Although in many cases a demand letter is not a legal requireemnt good and prudent practice require that one should be written.

The letter should be written with or it include any advice these may be used against your client should the action go to court unless it written ” without preduce”. The letter may offer a settlement that does not pursue the full redress, and generally it gives the other party a claim to settle without going to court.

A general summary of ehat demand letter would include;-

Date
Receipt’s content information
legal phase WITHOUT PRRESURE
Summary of the matter at issue
a demand for specific relief or payment
a deadline for settling the matter
the sender’s content information and signature

SAMPLE OF DEMAND NOTICE ENGLISH VERSION

P.O BOX 532

DAR ES SALAAM

26TH MAY 2020

RER:.MNA /Dar /MVC/01/2020

DIRECTOR

VILLAGE COMPANY LTD,

P.O.BOX 569

DAR ES SALAAM.

RE: THIRTY (30) DAYS DEMAND NOTICE OF PAYMENT OF TSH. 114,528,000/= TO UMOJA WA WAFUGA KUKU SONGEA (UWAKUSO) WITH INTENTION TO INSTITUTE LEGAL PROCEEDINGS IN RESPECT OF THE UNRELIABLE CHICKS SOLD BY YOUR COMPANY.

We are acting under the firm instructions of our client, one, ……………………………………………. () of Postal addresses 14 Songea, and we do hereby address you as hereunder.

That the said ………………………………………………………. of which five members of the said group were your clients who signed a contract with your Company on which you sold to them a total of………………………………………………………….
That, your company sold ………………………………… which made a value of …………………………………..
That, our clients maintained and grew each chicken for the cost of …………………………………………….
That, other raring costs such as water 20,000/= Tanzanian shillings per month, times 24 weeks = 112,000/=, Electricity bill 30,000/= Tanzanian shillings per Month, times 24 weeks = 168,000/= and costs for medication and other vaccination for 24 Weeks = 1,000,000/=.
That, no sooner had they started laying eggs, than all 720 chickens died at par, the thing which frustrated our clients to the extent of failing to handle their families.
That, each chicken lays one egg for seventeen months (17) daily, thus is to say five hundred and ten eggs (510) which make a total of seventeen trays (17) per Chicken per 17 months.
That, our clients got loss of thirty six hundred seven thousand and two hundred (367,200) eggs which make a total of 12240 trays of eggs for seventeen months (17).
That, each tray of eggs is sold at the price of eight thousands shillings only (Tsh. 8,000/=) which could give our clients a sum of 97,920,000/= Tanzania shillings, which our clients had lost.
That, our clients took trouble and incurred costs of five hundred thousand Tanzanian shillings (500,000/=) to find out the cause of death by hiring Veterinaries it was found out that your Chickens were not vaccinated at the age of one day before you sold to our client, the evil which was never disclosed to your clients hence they died of Marek’s desease.
That, our clients could sale all 720 chickens after 17 months @ Tsh 15,000/= which could give them the sum of 10,800,000/= Tanzanian shillings.
That, through above evil, the Matembwe village company Ltd, has broadly and in the day light, committed a serious and unpardonable fraud which calls for our attention and necessary legal action.
That, with this fraudulent and organized crime committed by your Company, it is imperative that legal actions, both civil and criminal be preferred, jointly and severally, against the individuals who have played both passive and active role in perpetuation of the criminality of this manipulation.
That, in order to attain your evil and illegal intention, your office in a number of times pleased our Clients by telling them that you could conduct a diagnosis on dead chickens, and compensate our clients for the loss deliberately caused by your Good Company but in vain.
That our clients, had to use all the resources they had in order to rescue the

Situation and the family, exposing our clients into specific damages of Tanzanian shillings 5,808,000/= and general damages of Tanzanian shillings 108,720,000/=

That, all efforts to have this matter amicably resolved by your office and our Clients on the fraudulently sold chickens which caused a loss to our clients have proved unsuccessful and your Company seem to be enjoying free air as if what you have done is appraisable.
That, this trend of your good office is not only tarnishing the image of your Company but also exposing the Company into the unnecessary contingent liability thereby negatively affecting the balance sheet.
This demand notice serves to officially and legally, notify you that:
We are requesting you, to unconditionally Pay our Client the Sum of 108,720,000/= Tanzanian shillings within thirty (30) days, with effect from the date of this demand notice.
Pay the special damages of 5,808,000/= Tanzanian shillings only within thirty (30) days from the date of this demand notice.

Pay Legal costs at the tune of Tanzanian Shillings Five hundred thousand only ( 500,000/=) arising from and consequential to this matter.

That, if the demands enumerated above are not heeded to or are neglected, we will have no option except initiating both, civil and criminal case, at your own risks and perils, without further notice. Further that, this letter serves as a thirty days notice with intention to sue your Company in event the matter stands unresolved.

NB: all correspondences regarding this matter shall be through the Advocate’s address and not otherwise.

So much be informed.

………………………………..

TRDSE ADVOCATES

Lawlibrary Advocates,

Dar es Salaam Branch,

P.O.BOX 45,

DAR ES SALAAM .

Phone: ……………..

3.1.6 DISPUTE RESOLUTION

Parties may opt to mediate or to negotiate themselves without go to court. Under this contain two aspects

Mediation
Negotiation

1. MEDIATION

Is a dispute settlement mechanism in which a neutral impartial third party brings the parties together encourage them to talk about the problem and solution that to settle their dispute. Once they agree they would write mediation agreement.

DRAFTING MEDIATION AGREEMENT

MEDIATION AGREEMENT

Between

………………………………………….

and

…………………………………………………

Both parties in this agreement agree as follow:

A: Mediation

……………………………………..
……………………………………
……………………………………
…………………………………..

B. Mediation Principles

…………………………………………..
………………………………………….
…………………………………………

C. Confidentiality and Compell

……………………………………..
……………………………………
……………………………………..

D. Presevrve of Status

…………………………………………………………….
…………………………………………………………..

E. Mediation Procedure

…………………………………………………………..
………………………………………………………….

F. Fees

…………………………………………….
…………………………………………..
……………………………………….

G. Signing Agreement

By signing this agreement the parties advising their willing to begin the mediation procedure.

This agreeement is entered into

………………………………………….. …………………………………………..

………………………………………… ……………………………………………

Party 1 Party 2

MEDIATION PROCEDURES

Step one: Preparation

Here the mediation will issue summons for day, time and place

Step Two: Opening Statement

Mediation will ussually start off by making a short speech

Step Three: Discussion

Party can start talking directly to each other. The starting point for the deserve is often a cement one disputant want to make about something the other some during opening statement.

Step Four: Propopals

At this stage mediator will discuss the strengh and weakness of your positive and the other party positive and float new idea of statement.

Step Five: Conclusion

The final stage of mediate occur which the party recall on agreement that resolve a desire or deceive the help of the mediation that are going to end the session without reading an agreeement.

2. NEGOTIATION

Negotiation is the process or mode of dispute settlement in which the parties themselves resolve their disputes.

Approaches of Negoation

Interest based Approach
Rights based Negoatition
Power based Negotiation

1. INTEREST BASED APPROACH

This approach shifts the focus of discussion from position to interest. As Shamir points out: “Bacause there are many intersts underlying any position, a discussion based on interests opens up a range of possiblilities and creative options, wheres positions very often cannot be reconciled and may therefore lead to a dead end. The dealogue on interest should be transparent, inorder for the parties to arrive at an agreement that will satifly the nedds and interests of the parties. While interest-based negotiations have the potential of leading to the best outcomes, the parties may not adopt it, and therefore we often find negotiations are ” right-based” or ‘power-based”

2. RIGHTS BASED APPROACH

It happen when negotiations between parties fail whereby the parties may then attempt to resort to what they consider to be their rights.

3. POWER-BASED APPROACH

This approach is applied when parties resort to threat or even violence as a way of communication for the purpose of persuasion. It used when parties cannot or are not willing to resolve their issues though interst-based negotiation.

PRINCIPLIES GOVERNING NEGOTIATION

Interest-Needs
Alternatives
Options
Standard and Cretaria
Communication
Relationship
Agreement

DRAFTING EXCLUSIVE NEGOTITATION

EXCLUSIVE NEGOTIATION AGREEMENT BETWEEN

……………………………………………………………..

BETWEEN

…………………………………………………………………………

This Excusive Negotiation Agreement entered into this…………………………day of ……………………………..20… between ……………………………………………………….and ………………………………………………

IT IS HEREBY MUTUALLY AGREED AS FOLLOWS

(a) Good faith Negotiation……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………..

(b) Periodic Negotiation……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

(d) Remedial for Breach

……………………………………………………………………………………………………………………………………………………..

IN WITNESS WHEREOF th agency and …………………..have signed the agreement on the specific dates set fourth below

Agency Developer

…………………………………………… ………………………………………………..

Name:………………. Name:……………

3.1.7 CHOICE OF FORUM

Here you choose which two

catergories

(i) Courts

(ii) Tribunals

(iii) Commission

I. COURTS

(a) Primary courts

(b) District Court

(d) High Court

Pre Litigation

CHAPTER THREE: PRE-LITIGATION, PREPARATION & SKILLS

3.0 INTRODUCTION

3.1 MEANING OF PRE-LITIGATION

3.1.1 MEETING WITH CLIENT AND CONSELLING

3.1.1.1 INTERVIEW SKILLS

Purpose of Interview

Steps for Interview

Step 1: Preparation

PREPARING THE ENVIRONMENT

PREPARING YOUSELF

STEP 2 INTRODUCTION AND INTERVIE GUIDE (WELCOME)

STEP 3 LISTERNING SKILLS

STEP 4 QUESTIONG SKILLS

STEP 5: TAKING NOTES AND KEEPING RECORDS

3.1.1.2 COUNSELING

I. IDENTIFYING THE CLIENT GOAL (PREPARATION)

II.MEETING WITH CLIENT

Counselling and Advice Categories into two

A. Transaction

B. DISPUTE RESOLUTION

3.1.1.2 ESTABLISH OF CLIENT RELATIONSHIP

ARTICLE 1

APPOINTMENT

ARTICLE 2

ARTICLE 3

ARTICLE 4

GOOD FAITH AND CLIENT/LAWYER CONFIDENTIALITY

ARTICLE 7

Dated this … day of …….., 2020

WITNESS

FOR AND ON BEHALF OF:

SOFT –TECH CONSULTANTS LTD

WITNESS

3.1.2 RESEARCH

A. RESEARCH ON EXPLORING THE FACTS

B.RESEARCH ON EXPLORING THE LAW

3.1.3 CASE ANAYSIS

TOOLS FOR CASE ANALYSIS

CASE THEORY

A. LEGAL THEORY

B. FACTUAL THEORY

C. PERSUASIVE THEORY

TEN COMMANDMENTS OF GOOD CASE THEORY

CASE THEME

Stages of Case Analysis

3.1.4 THE LEGAL OPINION OR LEGAL MEMORANDUM

3.1.5 DEMAND NOTICE

3.1.6 DISPUTE RESOLUTION

1. MEDIATION

MEDIATION PROCEDURES

2. NEGOTIATION

3.1.7 CHOICE OF FORUM