Firm 12B Class of 2017 KSL
The process of research and documentation
begins with the lawyer listening to the client.
IMPORTANCE OF LEGAL RESEARCH
- Legal research helps a trial advocate
find out the substantive law that applies to the issue the client is
charged with.
- Helps the trial advocate decide on a
theory of the case and any fall back positions. The trial advocate must
know the law and the facts in order to come up with a viable theory of the
case.
- Helps the trial advocate avoid situations
of surprise in the courtroom for example by gathering all the evidence
available and the witnesses.
- The trial advocate is able to know what
issues to omit.
- The trial advocate is able to have a
clear judgment of who among your witnesses is strong in their testimonies,
and the order in which they will appear
- Legal research is also important to help
the trial advocate equip themselves with the rules of procedure
- Also, it helps the trial lawyer in
adequately preparing for the trial as one is able to get an insight into
the case and have full appreciation of the facts
The research process involves:-
1.
Understanding and analysing the facts
2.
Identifying the legal issues and arranging them in order of relevance
3.
Classifying the legal issues
a. Statutory
b. Administrative
c. Case law
d. Procedural
4.
Defining the scope of the research problem
5.
Develop a research strategy
6.
Sources of information
a. Primary
b.
Secondary sources
RESEARCH PLAN.
Creating a research plan;
Nothing is more vital to the success of the
trial than a well-implemented detailed plan. At the outset of the trial, learn
how you can be most helpful by communicating with the lawyer or lawyers trying
the case. Clearly determine the team’s objectives and the role you will play in
achieving those goals. As you prepare the plan, remember the costs of the trial
and the amount at stake.
Here are some of the essential elements you
should consider when creating your plan:
Task List: Prepare a task list with a
timeline, including specific deadlines to accomplish each task, ideally in
chart form. Allow space for regular status updates from team members. Place the
task list in a central location accessible to everyone at all times. The task
list should provide specifics such as a description of the task to be
accomplished, who is responsible for accomplishing the task and supervising its
completion and any other information the team collectively deems essential to
the case.
Delegate Duties: Delegate responsibilities to
team members and make sure there is a clear understanding of who will be
responsible for completing and supervising each task.
Focus on Essentials: Eliminate what you don’t
have the time or the resources to accomplish. Additional depositions or
research might be useful, but if the cost of completing a task, either in money
or time, isn’t justified, bring it to the attention of the attorneys on the
team and discuss eliminating it from the plan.
From
the beginning one should bear in mind two questions;
a) What
has to be proved or disproved?
b) How the case at hand is to be proved and your
opponent’s disproved?(HYAM, 1990)[1]
The aim of the research plan to understand
what really happened. This can be done by meeting three requirements; obtaining
information about the issue at hand, drafting a plan and working effectively.
a) Obtaining formation.
Upon the interview with the client, the trial
lawyer is expected to take instructions. It is through the interview one gets
to find out;
1) The amount of time available.
2) The expected results.
3) The jurisdiction of the matter.
A research plan is meant to guide the advocate
on what to do during the investigation of the case. A research plan contains
the facts of the case and what sources to use in order to come up with a good
case file.
In a research plan, the following matters are
to be considered.
1.
The facts of the case
2.
What to investigate in the case
3.
What evidence to use in the case.
4.
How do I use the evidence and how to get it?
5.
What evidence will my opponent use?
6.
How to counter my opponent's evidence
7.
How to convince the bench with my evidence.
A research plan will also help you gather
information about the suit at hand.
b) Draft a plan.
1) The issue should be stated.
2) The facts of the case.
3) The law to be used.
4) The authorities to be used.
5) To identify the research resources whether
primary or secondary.
6) The documents needed.
c) Work effectively
The key in working effectively is orderliness.
This is also essential during the trial. The trial advocate should have a
specific file for the particular case at hand. This will aid in guiding the
advocate on his progress.
The advocate is required to analyse the facts
keenly and take notes. By taking notes one is able to know on what is required
and to avoid passing to the next before conclusion. In addition to that, it is
recommended that the advocate draws inferences from the primary facts. The
inferences will enable them to form a hypothesis as illustrated in the Morland
case.[2]
RESEARCH TOOLS
1. The Internet has provided easy and often
free access to information online.
2. Telephone
3. Libraries, primarily, law libraries
4. Generating search terms which will be
informed by the instructions and the nature of the case in question.
RESEARCH ON LAW
In researching the law, one must consider the
legislation, procedure and terms to use. It is classified into legal issues
which are;
1. STATUTORY LEGAL ISSUE
A statutory legal issue is that which is
provided for by an act of parliament or the Constitution. For example in
criminal cases one needs to refer to the penal code to know the implications of
a certain act. In a civil case, in the event of breach of contract on could
refer to the Law of Contract Act.
2. PROCEDURAL LEGAL ISSUES
These are the issues that advocates will need
to address themselves to when considering the legal steps to be taken in either
a criminal or civil matter so as to enforce any legal rights. Whether a matter
goes on to trial or not, there are certain processes that the case ought to go
through and procedural law governs these processes.
Procedural law provides rules on the following
matters:
- Jurisdiction
- Pleadings
and practice
- Rules
on evidence- these are; relevance, physical evidence and witnesses. On
relevance the evidence must be relevant to the case and must build on the
facts of the case.
On
physical evidence, documents need to be original and must be authenticated.
Witnesses must meet the capacity. A trial advocate has to know between relevant
and weighty evidence and consider their admissibility in court. He must know
what evidence to disclose including issues to do with confidentiality,
privilege and public interest immunity. Effective research of evidence is
crucial to winning a case.
- Rules
on appeal
- Execution
of judgments
- Costs
The
purpose of these regulations is to guarantee the parties that they will have a
fair hearing, and that the court will follow due process in order to ensure that
all matters that come before it are decided in a just manner. That is because
procedural law which is also known as adjective law provides a means for
enforcing substantive rules. Consequently, any party to a suit has the right to
challenge the court or the other parties in the event that they go against the
provisions of the law on the correct procedures to follow.
Generally, the two statutes that provide for the rules that
govern court procedures in civil and criminal cases include the Civil Procedure
Act and the Criminal Procedure Act respectively. These laws are important when
determining issues of procedure which include, but not limited to, the
identification of the correct parties to the suit, and whether it is possible
to join other parties or not; questions concerning who will have subject matter
jurisdiction over the claims; establishment of the party(s) who will have
personal jurisdiction over the parties and the proper forum to bring the case
before. The Evidence Act is also an important source of procedural law
especially when it comes to identifying admissible evidence. Other aspects
include the means of approaching the court, the presentation of evidence,
methods of notifying parties about the suit, the process of determining the
facts, pleading and practice, appealing, execution of judgments, and the
representation of counsel.
Procedural legal issues share certain common features. For
instance, it is a requirement that all procedures uphold the principle of due
process. They must also ensure that the parties exercise their rights as
provided for under the law particularly with regards to giving notice of the
suit to the defendant and a fair opportunity for them to present their case.
3. CASE LAW
Precedents
help the advocate predict the outcome of the case and what steps to take.
SOURCES OF LAW
Harvey describes sources of law as;
Defined
repositories of authoritative rules to which the law applies, the ordinary
citizen, practicing advocates, executive officers of government and more importantly,
the judges turn to for guidance on applicable norms.[3]
The sources of law in Kenya are divided into
two;
- Primary
sources
- Secondary
sources
- Primary sources
I.
The
Constitution.
II.
The Acts
of Parliament.
III.
Specific
Acts of Parliament of the United Kingdom
IV.
Certain
acts of parliament of India
V.
English
statutes of general application in force from 12/8/1897
VI.
The
substance of common law and doctrines of equity
VII.
The
African customary law
VIII.
Islamic
law
IX.
International
instruments e.g. Treaties
- Secondary sources
I.
Legal text
books by members of the Kenya academia, the bench and the bar.
II.
Legal
journals
III.
Magazines
and newspapers containing articles which discuss various laws and regulations
IV.
Commentaries
and treatises.
DISCOVERY
A CIVIL
MATTER.
In a civil case a process called discovery is
used. Discovery is a legal term of art that consists of several tools that are
used to uncover facts relevant to the various claims and defenses at issue. It
is key to have a discovery strategy to avoid surprises during the trial. It
also assists the advocate to acquire the knowledge on how to institute the
case. It consists of;
a) Written discovery.
b) Oral discovery.
c) Physical and mental examination.
Written Discovery.
As the name suggests the evidence is gathered
in writing, it is done through;
1) Interrogatories. These are written questions
to be answered in writing
2) Requests for production of documents. In this
case a party is required to produce specific documents for inspection and
photocopying.
3) Requests for admissions. It seeks to have a
party admit the truthfulness of a statement of fact.
Oral Discovery.
It is done through depositions whereby a
person who may have relevant knowledge of the facts is required to provide that
information through a question and answer format. The individual gives
testimony that may be used in a trial. However, the judge is not present.
Physical and Mental Examination.
When the physical and mental health of an
individual is a matter of controversy, the opposing party may seek a court order
for the examination to be conducted.
Discovery
Disputes.
In a case where a dispute arises as to the
relevance of the discovery requests, the courts may be asked to intervene and
resolve it. It is done through a motion to compel discovery.
CRIMINAL CASE.
In a criminal case the trial lawyer is
expected to have a case file, which shall be mentioned into detail at a later
stage. Upon the client being arrested,
in accordance to section 123 of the Criminal Procedure Code, the client/accused
may be released on bail. The trial lawyer needs to have copies of the bail/bond
documents.
Once the accused has a taken a plea of not
guilty in court, a copy of the charge sheet should be handed to the trial
lawyer. This enables the trial lawyer to be conversant with the exact offense
his client is accused of and to analyse the validity of the charge sheet.
When the trial lawyer is aware of the offence,
he is expected to give a legal opinion of the case to his client. The
preliminary legal opinion could be used as an out of court settlement.
In addition to that, the trial lawyer is
expected, upon the client taking plea, to apply to the court for copies of
statements and exhibits the prosecution seeks to rely on. Through this the
trial lawyer will be able to prepare a defense case by gathering evidence such
as expert reports and case authorities.
DOCUMENTATION
It is used by advocates to assist in trial
preparation. It is a simple structured method that advocates use to organize
trial documents for quick access and reference during trial
Importance of Documentation
1. Reduces cases of loss or misplacement of
documents.
2. Leads to proper planning of the entire trial
process.
3. Enhances accountability and facilitates
coordination of the case between the parties
4. Protects a trial lawyer from clients reluctant
in giving instructions
5. Provides case history hence ensuring continuity
of a case
There are two basic items needed by an
advocate for purposes of documentation.
·
Notebook
·
Casefile
Trial Notebook
It is a reflection of the advocate’s
organizational skills, thought processes, trial strategy and overall theme of
the entire case. It used by the advocate to record the list of documents needed
in the document. It should also contain the organization of the trial process.
It should also contain outlines such as examination outlines, motions, and
orders.
The best time to prepare a notebook is once
the client has signed the fee agreement and handed in the retainer.
Importance
of a trial notebook
- Having
a trial notebook makes it easier to flip though the indexed sections when
trying to find a specific pleading or documents.
- It
helps crystallize the theme of the case and the trial strategy.
Trial notebook contents;
▪ checklist of information to put on the
record prior to the commencement of trial (e.g. agreement of facts,
non-contested issues, time estimations, order of witnesses and duration of
witnesses.
▪ checklist of motions for prior to the
commencement of trial
▪ checklist of information that you want to
put on the record prior to the close of counsel's evidence (e.g. expectations
on rebuttal evidence, time expectation)
▪ checklist of motions for prior to the
closing of counsel's part of their case
▪ briefs on the law and supporting case law
▪ list of witnesses with synopsis of their
relevant evidence
▪ outline of proof for each charge, connection
with each witness and exhibit
▪ examination outlines for each witness
▪ opening/closing outline
What
to put in the notebook
Depending on your case, what to include can be
almost anything. The following are some common sections of a notebook:
>Pleadings
This help to understand the issues before the
court and relief being sought.
>Pretrial
motions
>Discovery
responses
>Inventories
>Witnesses
>Exhibits
>Timelines
>Research
Soon after the trial the advocate should sit
down with his staff and review the effectiveness if the notebook thus helping
in developing subsequent trial notebooks.
Case
Theory
The case theory provides a structure that
serves as the organizing principle for all your pre-trial and trial endeavors,
guiding every activity from interviewing to the closing argument. It is the
core concept that runs throughout the work of the advocate.[4]
According to James McElhaney, the theory of
the case is a product of the advocate, the basic concept around which
everything revolves.[5]
A case theory has two main interdependent
components: the legal theory and the factual theory.
The legal theory is a legal framework
developed by the advocate from interpretation, analysis and expansion of the
legal rules and standards as found in statutes, cases and regulations. Though
based on the law it is merely an advocate’s interpretation of the law.
The factual theory is the party’s story
justifying relief sort under the legal theory. It is based on the evidence and
logical inferences from the said evidence.
When selecting a case theory it is important
to note that the legal and factual theory are interrelated and linked together
by the client’s objectives(to be acquitted of a crime, avoid damages, get an
injunction) , the law and available information.
Plaintiff’s
Case theory
a)
Legal Theory
In case of a civil plaintiff, the legal theory
corresponds to the claim for relief. It asserts that the plaintiff can
establish every element of the civil claim under the burden of proof.
For the prosecutor the legal theory will
correspond to the statutory definition of the particular crime involved. It
asserts that the prosecutor can establish every element of a statutory offense.
While selecting the legal theory one has to
identify the potential legal theories then assess the strengths and weakness of
each.
b)
Factual Theory
This is construed from the mass evidence
gathered to support the legal theory. The factual theory must be factually
sufficient and factually persuasive.
Defense
Case Theory
The plaintiff’s case theory is an attack on
the defendant. The defendant can respond to this attack in three ways:
a) Attacking
weaknesses in the plaintiff’s case theory
The defense legal theory can attack the
plaintiff’s theory by; attacking the legality of the plaintiff’s theory, attack
the factual sufficiency of the plaintiff’s case theory, attack the persuasive
sufficiency of the plaintiff’s case theory and by attacking the procedural
aspects of the plaintiff’s case theory.
b) Counterattack
or Affirmative Defense
Here the defense theories are based on attacks
on persuasive sufficiency and on affirmative defense litigation strategies
which state that even if the plaintiff’s theory cannot be attacked the
defendant should not be liable or his liability should be mitigated.
c) Negotiation
and Settlement
Defendant can decide that negotiations is the
most viable alternative. A strong case theory is key for obtaining leverage in
the eventual negotiation.
There are situations where a party can offer
multiple legal theories, this include:
i)
Evidence
Gathering
During the evidence gathering phase, the
advocate can pursue several legal theories. This is usually at the early
stages. As facts are uncovered the
tentative theories are eliminated due to lack of evidence to support them.
ii)
Strategic
Sequence
Several theories may be used in a strategic
sequence. This is mostly used as a backup theory reflecting the necessity for
an advocate to plan for every inconceivable contingency and alternative
throughout the representation of the client.
iii)
Alternatives
Here the advocate presents alternative legal
theories. However at some point the theories may become so divergent or even
inconsistent that a choice must be made prior to negotiation or trial.
Case file
A case file is developed to ensure that the
client you are representing has all details pertaining the litigation and for
keeping records. Basically a case file contains instruction notes, the minutes
of meetings, court attendance sheets, and all requisite docs. The contents of a
case file will vary depending on the matter being litigated, that is civil or
criminal, and much further on the specific case being handled. A case file
ought to be clearly marked with the most recognized case details on the cover
so as to be easily unidentifiable. It is then filed in the current case files
shelf. Certain paperwork such as pleadings, plaints, defenses, orders and
correspondences should be clipped together chronologically with the most recent
document at the top. Original evidences, such as bills and correspondences,
should be put in clear plastic pretty protectors to ensure that they are not
marked during the litigation process.
A trial advocate should have a checklist of
the following documents:
|
CIVIL
|
CRIMINAL
|
|
Affidavit O4 R1 of the Civil Procedure Rules
|
Charge
Sheet
|
|
A list of
witnesses
|
Statement
of the client
|
|
Written
statements signed by witnesses not including expert witnesses
|
Witness
statements
|
|
Copies
of documents to be relied on at the trial including a demand letter
|
Copy of
bail or bond receipt
|
|
List of
exhibits
|
Defence
documents
|
|
Pleadings:
Plaint and Defence
|
Court
attendance records
|
|
Applications
if any
|
List of
exhibits and correspondences
|
CONCLUSION
Note that it is important not to mark
documents that are to be represented before the court or to a witness. This is
to avoid viewing the trial advocate not serious with the suit at hand.
To avoid confusion, assemble all documents in
order of their appearance and make inferences before appearing in court.
[1](HYAM, 1990)
[2]
Morland v Sprecher, 443 U.S. 709 (1979)
[3]
William Burnett Harvey ,”An Introduction to The Legal System in East Africa” Nairobi East Africa Bureau 1975.
[4]Marilyn
J. Berger, John B. Mitchell & Ronald H. Clark, Pretrial Advocacy (2010)
[5]James
McElhaney, Mcelhaney’s Trial Notebook (2005)
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