TRIAL ADVOCACY LAW NOTES (ATP 104)

 

 TOPIC 1: INTRODUCTION TO TRIAL ADVOCACY

What is Trial Advocacy?

• It is about presenting a case before a dispute resolution forum
• Black’s Law online Dictionary 2nded. Def. of Advocacy-“The active support of an issue or the espousement of a set cause.
• Steven Lubet, “Modern Trial Advocacy”-“Trials are held in order to allow the parties to PERSUADE(emphasis added) the judge or jury by recounting their version of the historical facts”
• A trial can be referred to as the hearing of a civil or criminal case before a court of competent jurisdiction.
• It can also be defined as the judicial examination of the issues in a civil or criminal cause by a competent tribunal and the determination of these issues in accordance with the law of the land.
• Advocacy on the other hand originates from a Latin word ‘advocatia’ meaning ‘summon to one’s aid’.
• It is a wide concept in itself but can be narrowed down and viewed from a legal perspective as; the act of pleading for or supporting an idea and wanting the recipient to make his point of view that of yours.
• Trial advocacy can be defined as the understanding of trial rules and procedures and the effective and successful persuasion of a tribunal and a judge.
• Advocacy is a concept that existed even in the Bible.
• In Acts 24:1 we find that a lawyer known as Tertullus and some elders brought charges against Paul before their governor. It can be seen that Paul spoke for himself as was to be evidenced even later on in the Roman Empire.

Purpose of Advocacy

• Advocacy is speaking up for, or acting on behalf of, yourself or another person.
• The other person is often receiving a service from a statutory or voluntary

Advocacy Models

1. Self Advocacy

• This is where an individual, or group of people, speaks or acts on their own behalf in pursuit of their own needs and interests - speaking up for yourself.
• Speaking up may be difficult because of a disability or illness or simply because people don't take service users seriously or think they are incapable of making decisions.

2. Citizen Advocacy

• This is where someone else speaks up on behalf of the service user or helps them to speak up for themselves. It is based on the idea of a 'valued citizen' (i.e. someone who does not have a problem getting heard), working with a person who is discriminated against.
• The relationship may develop into friendship or just working together to develop the service user's skills or confidence to manage their own situation.
• Citizen Advocates usually come from a recognised and coordinated scheme.

3. Crisis Advocacy

• This is where an advocate is found to help with a one-off difficult situation or crisis. The advocate may be someone who is already a Citizen's Advocate.

4. Peer Advocacy

• This is where service users who have experienced similar problems of not being listened to, may help others to speak up for themselves.
• A peer advocate is likely to have a very good understanding of what other service users are going through.

5. Professional Advocacy

• This can mean experts in a professional field, such as lawyers, being commissioned to speak up on behalf of an individual service user or group.
• They may or may not receive payment for acting as an advocate.

6. Collective Advocacy

• This is where a group of people, sometimes from very different backgrounds, campaign on behalf of themselves or others to try and change things. 
• This could be a national organization or a local one focusing on either national or local issues

 

What is the basis of advocacy?

• Is advocacy about establishing the truth of an issue?

• Advocacy is rather about persuasion, it is more about wining than establishing the truth. Within the rules of course.
• The aim of this course should be to try and improve our advocacy skills and to help us try and develop competence.
• It is about mastering rules, rules of evidence, procedure rules, it is about wining but winning within the rules.

1. Never mislead the court or the Coram whether it be a court or tribunal.

2. Never use sharp practices on your colleagues – things that make an advocate unreliable. Like going back on ones word, or hiding files

3. Always try to think like the court – it is easy to persuade a judge when you now about his thinking.
 

To be persuasive, it is a bout certain things such as personal presentation i.e one is selling a client’s story.

i. One of the elements towards persuasion is about dressing well.

ii. Secondly is about poise and confidence.

iii. Never ever get annoyed with the tribunal or the court.

 

What is the message? How does one get the audience to listen? 

These are things that only come with practice.


What then is the history of Trial Advocacy?

• Advocacy is one of the most ancient and honorable of all callings. From time immemorial, the principle that a person has the right to select another to plead his case has been recognized.
• History also tells us that the earliest people who could be described as “lawyers” were most likely the orators of ancient Athens who upheld the “legal fiction” that they were merely ordinary citizens generously helping out a friend in exchange for a fee. 
• Many of the great orators of Greece and Rome though in a manner differing from that of modern times, performed the functions of advocates and many of their most famous orations were composed for that purpose. 
• However, the first people who could practice the legal profession openly and legally would have to be the orators of ancient Rome.

i. The Greeks

• Among the Greeks, it was not customary for the advocate actually to plead the cause of his client in court.
•  The usual custom was for the client to lay his cause before one of the great orators or writers of the day who would then prepare an oration which the client read or delivered at the trial.
• Before the tribunals of Athens, although the party pleaded his own cause, it was usual to have the oration prepared by one of an order of men devoted to this business and to compensate him liberally for his skill and learning.

ii. The Romans

• The case was different among the Romans. Apparently, advocacy received a wide recognition among the Romans than the Greeks.
• During the period of the Republic (the period between 509-264BC), it was the prerogative of the Roman patrician (rich and powerful individual) to render assistance and afford protection to his dependents and even to others who sought his services and advice.
• For this purpose, therefore, the patrician frequently appeared in the courts to defend the cause of his client.
• In this way there gradually developed the highest type of Roman advocate-the patronuscausarum or patron or in modern times, the barrister. 
• At this time the patron charged no fee for his services, although it was not considered improper for him to accept an honorarium or gratuity from the client.
• Professional Advocacy then rose to an honorable calling and gradually supplanted the ancient and more directly honorable relation of patron and client. 
• Similarly, the Romans also recognized the Juriconsult who happened to be the confidential legal advisor to the Roman people. 
• He was presumed to be thoroughly versed in the law of the land and he regularly appeared in a forum with the purpose of imparting information and advice. 
• Accordingly, the Juriconsult so happened to be an expert in law, and his opinion was highly valued by his clients, advocates and others employed in the administering of justice.

iii. England

• In England, early history shows that justice was crudely and arbitrarily administered.
• The village moots, the shire courts and the barons’ courts were the most effective in administering justice. However, they did so without much formality. 
• The duties of an advocate were first performed by priests and monks who were believed to have educational advantages which were more superior to other classes of persons. 
• Around the beginning of the 14th Century, certain law societies known as Inns of Courts were organized and they were given the exclusive power to extend a call to the bar and to prescribe the qualifications of an advocate. 
• The organization of this Inns marked the beginning of advocacy and the legal profession in England. The Inns of Courts then later became the great English law schools.  
• It may be said in general of the early Greek, Roman and English lawyers that they were not in any manner inferior to their modern successors in the profession. 
• They were learned in the law, powerful in oratory and debate, zealous in upholding the law of the land, devoted to the interests of their clients and true to the finest ethics of their profession. For example, Julius Caesar was not only a soldier but also a learned lawyer and an orator of distinction.

iv. The Kenyan Chapter

• Kenya being a colony of the United Kingdom, the reception clause in s.3 (1)(c) of the Judicature Act ensured that the practice in England was brought in its entirety to Kenya thus trial advocacy was offered in law schools in line with England’s mode.
• During the colonial period, students wishing to pursue a career in the legal profession could neither undertake their studies in Kenya nor anywhere in East Africa.
• This state of affairs had been deliberately introduced by the colonial government. The sole aim of the policy was to encourage Africans to train in other professions rather than law since it was deemed that all those interested in the legal profession were preparingthemselves for a career in politics which the colonialists considered a threat to their existence.
• During this era, two segments of law were inherited, that is, the public law and the private law.
• Public law was meant for the people from England and the Private Law was meant for the Indians.
• There was no comprehensive statute regulating the conduct of the advocate hence the colonial bar identified with the colonial government which benefited much from these. The regulation of the legal profession in Kenya by an organized group within the legal profession started with the Mombasa Law Society which was founded in those early years.
• The first High Court was established in Mombasa in 1911 and the legal profession really started at Mombasa. The Mombasa Law Society was a voluntary organization.
• When Nairobi was established as a center of commerce and administration and a High Court established here, the lawyers practicing in Nairobi formed the Nairobi Law Society which was also a voluntary organization. 
• The two societies merged sometime in the 1920s to form the law society of Kenya. Therefore the LSK was born in 1920s. 
• Currently membership of the Law Society of Kenya is mandatory. 
• The Mombasa Law society remained in existence as a voluntary body, the Nairobi Law Society disappeared when LSK was formed but Mombasa Law Society remained in existence as a voluntary body and remains so to this day. 
• The Advocates Act and the Law Society Act of Kenya were enacted in 1949. These are the two pieces of legislation for the regulation of the legal profession. 
• The LSK Act Cap 18 established the existing Law Society of Kenya as an incorporated body and made its membership mandatory. 
• The two statutes remain in force to date, several amendments have been inserted over the years and the only other statute to be enacted in recent years is the Council for Legal Education Act Cap 16A Laws of Kenya 
• The drive to independence shed light on the colonial government and prior to independence a committee on Legal Education for Students in Africa (Denning Committee) was formed do deal with the legal education affairs for Africans. 
• The committee came up with various recommendations which included inter alia uniform qualification for one to practice law in East Africa. 
• The qualification of an advocate was a law degree to be obtained from the faculty of law to be established in Dar es Salaam - Tanzania. The degree was to be followed by a one year practice at a law school. 
• The committee further recommended that all British trained students should only be admitted after undergoing further training in the local laws. 
• The Law Society of Kenya was of a contrary opinion which suggested that the law school should be established under a system of articled clerkship which was to be embraced as an alternative to a university degree followed by one year practice training. 
• The colonial government embraced the suggestion and both modes of entry were regarded legal followed by a practice training (now referred to as the pupillage programme).  
• In 1970, a faculty of law in the University of Nairobi was established and consequently the school of law which was slated as an inn of court. Later, a complaint commission was established to deal with the complaints against any advocate.

CONCLUSION

• Trial advocacy is all about persuasion. It is taught as a fundamental litigation skill in most law schools and involves strategic and tactical skills.
• Trial advocacy is about winning but winning within the rules. It is about mastering substantive rules, procedural rules and the rules of ethics. 
• Trial advocacy brings about beneficial outcomes in a way that enables each client to retain as much control as possible over how it is carried out. An advocate may provide information and advice in order to assist a person to take action to resolve their own concerns, or may take a more active role in representing the persons’ rights to another person or organization. 
• Trial advocacy is now encompassed in the statutes that recognize the profession such as The Advocates Act and Rules, Advocates Remuneration Act, The Council for Legal Education Act and The Kenya School of Law Act. 
• All these statutes recognize trial advocacy and provide rules on how it is to be conducted in various environments.
  

The UN Basic principles on the Role of Lawyers

• Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990
• Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia, their determination to establish conditions under which justice can be maintained, and proclaim as one of their purposes the achievement of international cooperation in promoting and encouraging respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion,
•  Whereas the Universal Declaration of Human Rights enshrines the principles of equality before the law, the presumption of innocence, the right to a fair and public hearing by an independent and impartial tribunal, and all the guarantees necessary for the defence of everyone charged with a penal offence,
• Whereas the International Covenant on Civil and Political Rights proclaims, in addition, the right to be tried without undue delay and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, 
• Whereas the International Covenant on Economic, Social and Cultural Rights recalls the obligation of States under the Charter to promote universal respect for, and observance of, human rights and freedoms,
• Whereas the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that a detained person shall be entitled to have the assistance of, and to communicate and consult with, legal counsel,
• Whereas the Standard Minimum Rules for the Treatment of Prisoners recommend, in particular, that legal assistance and confidential communication with counsel should be ensured to untried prisoners,
• Whereas the Safe guards guaranteeing protection of those facing the death penalty reaffirm the right of everyone suspected or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings, in accordance with article 14 of the International Covenant on Civil and Political Rights,
• Whereas the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power recommends measures to be taken at the international and national levels to improve access to justice and fair treatment, restitution, compensation and assistance for victims of crime,
• Whereas adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession,
• Whereas professional associations of lawyers have a vital role to play in upholding professional standards and ethics, protecting their members from persecution and improper restrictions and infringements, providing legal services to all in need of them, and cooperating with governmental and other institutions in furthering the ends of justice and public interest, The Basic Principles on the Role of Lawyers, set forth below, which have been formulated to assist Member States in their task of promoting and ensuring the proper role of lawyers, should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and the legislature, and the public in general. These principles shall also apply, as appropriate, to persons who exercise the functions of lawyers without having the formal status of lawyers.

Access to lawyers and legal services

1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.

2. Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status.

3. Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the organization and provision of services, facilities and other resources.

4. Governments and professional associations of lawyers shall promote programmes to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers.


Special safeguards in criminal justice matters

5. Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence.

6. Any such persons who do not have a lawyer shall, in all cases in which the interests of justice so require, be entitled to have a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance, without payment by them if they lack sufficient means to pay for such services.

7. Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.

8. All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with alawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.


Qualifications and training

9. Governments, professional associations of lawyers and educational institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideals and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law.

10. Governments, professional associations of lawyers and educational institutions shall ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status, except that a requirement, that a lawyer must be a national of the country concerned, shall not be considered discriminatory.

11. In countries where there exist groups, communities or regions whose needs for legal services are not met, particularly where such groups have distinct cultures, traditions or languages or have been the victims of past discrimination, Governments, professional associations of lawyers and educational institutions should take special measures to provide opportunities for candidates from these groups to enter the legal profession and should ensure that they receive training appropriate to the needs of their groups.

Duties and responsibilities

12. Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.

13. The duties of lawyers towards their clients shall include:

(a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients;

(b) Assisting clients in every appropriate way, and taking legal action to protect their interests;

(c) Assisting clients before courts, tribunals or administrative authorities, where appropriate.

14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.

15. Lawyers shall always loyally respect the interests of their clients.

Guarantees for the functioning of lawyers

16. Governments shall ensure that lawyers

(a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;

(b) are able to travel and to consult with their clients freely both within their own country and abroad; and

(c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

17. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

18. Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.

19. No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles.

20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.

21. It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.

22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.

Freedom of expression and association

23. Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.

Professional associations of lawyers

24. Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.

25. Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.

Disciplinary proceedings

26. Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms.

27. Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.

28. Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.

29. All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.

Key Skills in Trial Advocacy
In Trial Advocacy or a lawyer is one that is possessed of optimum qualities and skills set.

There are distinct skills and qualities that are primary for effective delivery of trial:

1. Analytical Skills –ability to examine in details and make sense of heaps of documents i.e letters, pleadings, statutes, contracts etc.

2. Creativity-the mind and ability to create new ideas and approaches and eliminate conservatism.

3. Research Skills-The ability to systematically investigate and study materials and their sources in order to establish facts and reach new conclusions.

4. Interpersonal Skills-Ability to learn and excel to create and foster good working relationships between people and himself and even among other people.

5. Public Speaking Skills-Ability to speak before a crowd in a clear and crisp manner. Comfort in addressing the court.

6. Reading and Writing Skills- Ability to draft documents , passages, reports, opinions, submissions .Cases are won or lost mainly at the pleading stage hence superb writing skills is essential to all trial lawyers.

7. Logical Thinking-Ability to marry ideas and thoughts in a reasonable and authentic manner. Ability to decipher situations in a systematic manner and make reasonable assumptions, conclusions and judgments.

8. Advocacy Skills-Super in client service. The profession is a service industry requiring honesty, capability and efficiency. Proficiency in handling clients, witnesses, the court and other consumers of justice. Advocacy skills also involve deep and broad knowledge in substantive law and procedures. It also involves proficiency in the constitutional principles and provisions, legal systems, statutory provisions, rules of procedure and regulations of general applications. It also involves knowledge of time deadlines for instituting proceedings, legal costs and relevant legal terminologies. Exhibit candour and reflect professional integrity.

Trial Advocacy and Formal Sources of Law (Tools)

‘Tools of a trial advocate’ refers to the sources of law available to an advocate, the purpose of which is to facilitate or enable the skillful and effective representation of a client by the advocate at trial.

There is no single document that contains all the advocacy tools as a whole, instead these sources of law according to Section 3 (1) of the Judicature Act are; the Constitution, Statutes/ Legislation, and English Common law and Doctrines of Equity.

Another source mentioned in the Judicature Act Section 3 (2) is African Customary law. There are other sources of law that are not mentioned in the Judicature Act and these are; Religious Laws, General Principles of International Law and International Treaties and Conventions, and Judicial Precedent.

These sources can be further categorized as substantive, procedural or ethical.

i. Substantive laws are the body of rules which determine the rights and obligations of individuals and collective bodies.

ii. Procedural laws are laws which govern the flow of the case such as steps to process a case. They deal with and lay down the ways and means by which substantive laws are to be enforced.

iii. Professional ethics rules govern personal, organizational and corporate standards of behavior expected of an Advocate. The most common ethical virtues emphasized by the Advocates Act (Cap 16) are; honesty, integrity, transparency, accountability, confidentiality, respectfulness, objectivity and obedience of the law.

Statutory Sources of Law

a) Constitution of Kenya, 2010   

Trial advocates are bound by the Constitution as the supreme law of the land to adhere to its provisions in all their undertakings.
 

Articles in the constitution that are significant in trial advocacy include; Article 27, 29, 48, 49, 50 and 51 which recognize; equality and freedom from discrimination, freedom and security of the person, access to justice, rights of arrested persons, fair hearing, rights of persons detained, held in custody or imprisoned, respectively.

b) Acts of the Parliament of Kenya

These are rules made by Parliament “either directly or indirectly”. Legislations can contain both procedural and substantive law.

For example, Section 9 of the Advocates Act contains substantive law on the qualifications for a practicing advocate, professional and academic qualifications for admission as an advocate, remuneration of advocates, etc.

On the other hand, the Civil Procedure Act contains procedural law on the proceedings of civil cases. These rules set down the procedure to be followed.

The Evidence Act Cap 80 of the laws of Kenya enumerates several provisions which are to be strictly observed and applied by advocates at trial in their practice as well as carrying out their legal and official duties.

Section 144 to section 166 provides the detailed explanation as to the examination and questioning of witnesses in a trial is it criminal or civil. It contains rules on examination in chief, cross- examination and re- examination rules regarding leading questions, questioning witnesses as to credibility and those related to circumstantial questions to a witness to support and confirm evidence.

c) Treaties and Conventions 

According to Article 2 (6)of the Constitution, any treaty or convention ratified by Kenya shall for part of the law of Kenya.

Generally treaties and international conventions are considered essential sources of law especially to a trial advocate and in cases where there are matters of international nature or interstate conflicts.
 

Treaties and conventions are considered as part of Kenyan law by virtue of the Judicature Act and as provided by Article 2 (5) of the Constitution of Kenya which states that the general rules of international law shall form part of the law of Kenya.
 

These include, the Treaty establishing the East African Community and the United Nations Charter.

d) County Assembly Legislation

The Constitution under Article 176 provides for county government and it clearly states that each shall have a county assembly and a county executive. It goes further to state to that every county assembly must have a decentralized system that is efficient.
 

Every county must have a county assembly that will have the authority to make its laws that will enable effective performance of the functions and exercise of the powers of the county government as is envisaged under Article 185 of the Constitution. Each and every advocate will also be guided by the laws of the county he or she is in.

In case of a conflict between national and county legislation in respect of matters falling within the concurrent jurisdiction of both levels of government, the national legislation will prevail over county legislation, Article 191 of the Constitution of Kenya.

e) Certain Specified Statutes of the United Kingdom

i. Statutes of General Application

The Judicature Act in Section 3 (1) (c) states that, where statutory laws do not extend or apply to a particular matter, the statutes of general application in force in England on the 12th August 1879, will apply. 

However the statutes of general application shall only apply so far as the circumstances of Kenya and its inhabitants permit.

ii. Delegated/ Subsidiary/ Subordinate Legislation Non-Statutory Sources

(a) Substance of English Customary Law& Doctrines of Equity 

 
According to Section 3 (1) (c), where statutory laws do not apply, the substance of the common law and doctrines of equity will apply. 

However the substance of English common law and doctrines of equity will only apply so far as the circumstances of Kenya and its inhabitants permit. 

The doctrines of equity are applied where common law provides no or an inadequate remedy.

(b) International Customary Law

(c) General Principles of International Law
 

According to Article 2 (5) of the Constitution, the general rules of international law form part of the law of Kenya.


(d) African Customary Law

African customary law is applicable so as long as it is consistent with the constitution.

Section 3 (2) of the Judicature act states that the High Court and Court of Appeal “shall be guided by African Customary Law in civil cases in which one or more of the parties is subject to it of affected by it.”

It further adds that the application of customary law shall not be repugnant to justice and morality, or inconsistent with any written law.

African Customary law is diverse given the existence of different tribes.
(e) Religious Laws

(f) Judicial Precedent

Judicial precedent is grounded on the doctrine of stare decisis which when translated, means stand by the decision.

Judicial precedents, commonly referred to as case laws, are past court decisions that create law for judges and advocates to refer back to for guidelines in future cases. 

In Kenya, the practice of precedence provides that the decisions of a superior court are binding to those of a subordinate court. 

Further, the judicial decisions from other jurisdictions when relied upon are merely persuasive in nature. In certain circumstances, a court may refrain from a binding precedence by; 

Distinguishing, a judge states that the facts of the subsequent case are not sufficiently similar to a previous case. 

Overruling, the court decides, in a later case, decides that the legal ruling or reasoning in an earlier case was wrong. 

Revising, where the decision of a lower court is overturned by a higher court. 

Decision reached per in curium where the decision was reached at in total ignorance of the law. 

Precedents provide certainty, predictability, convenience and consistency when being relied upon by trial advocates, since subsequent cases have sufficiently similar facts to previous cases.

Conclusion 

These sources are places which advocates look at for the law depending on the particulars of the case before them. 

On instruction a trial advocate must come to a conclusion that the matter before him/her is a criminal matter or a civil matter. 

Once he/she has classified this matter then his greatest source of solution to his/her client’s problem is where to find the law. 

A trial advocate need not only know where to find the law, proper interpretation and skillful application of the law is a necessity at trial.

Places for Practice of Advocacy - Courts and Tribunals  

In law, a trial is when parties to a dispute come together to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. 

The Constitution has categorized courts into two

1) Superior Courts – Supreme Court, Court of Appeal and High Court (Article 162)

2) The Subordinate Courts- Magistrate Courts,Kadhis Courts, Court Martial and Tribunals set up by parliament (Article 169)

One can also practice in International Court like the ICC

There can also be client presentation in ADR tribunals (Negotiation, Mediation and Arbitration)

In all of the above the venue can be Municipal, Regional or International

GENERALLY ROLE OF A LAWYER

UN Basic Principles on the Role of Lawyers No. 13:Duties of lawyers to their clients:

1. Advise on legal rights and obligations and working of legal systems.

2. Assist clients in every way and take legal action to protect their interests.
3. Assist clients before courts, tribunals or Administrative Authorities where appropriate.

To persuade the fact finder to arrive at an opinion favorable to their client, in accordance with:

i. Substantive Law

ii. Relevant procedural law

iii. Ethics

What the lawyer will be doing-Persuading the fact finder to arrive at a conclusion favourable to his or her client.

INTER-RELATIONSHIP OF TRIAL ADVOCACY WITH OTHER FIELDS

Civil Litigation

Civil Procedure Act and Rules

Order 18 Rule 2:Unless the court otherwise orders—

(1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

Criminal Litigation

Criminal Procedure Code, Cap. 75 Sec. 300-Case for the Prosecution

“The advocate for the prosecution shall open the case against the accused person, and shall call witnesses and adduce evidence in support of the charge.”

Sec. 307 –Case for the Defence

307. (1) The accused person or his advocate may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution; the accused person may then give evidence on his own behalf and he or his advocate may examine his

witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case

Professional ethics

Ethical duties-To client; fellow advocates; to court; to the Administration of Justice.

Conflict of interest -Declining brief; Circumstances in which a judge ought to recuse himself or herself; Circumstances in which an Advocate can ask a judge to recuse.

Court etiquette-Court and similar fora

Standards set in instruments like the Constitution.

TOPIC 2: QUALITIES OF A GOOD TRIAL LAWYER.   

Over the years a number of qualities have been suggested as desirable for a person to be a good trial lawyer. These qualities can be summarized as follows:

 
QUALITY EXPLANATION

1- Clarity  

This is basically the order of language 

Communication is the life-blood of the trial lawyer's profession. 

Trial lawyers should be able to put their questions clearly and logically to witnesses, and when addressing the court, should ensure that they express themselves with clarity and in a logical sequence. 

Obscure or ambiguous questions and arguments presented disjointedly may irritate the court, and issues not clearly presented may seriously prejudice a client's case. 

A good rule to remember is always to keep questions and sentences short, and to speak slowly.

2- Honesty and Integrity.  

Honesty and integrity are obvious attributes required of trial lawyers in their role as officers of the court and as a result of duties owed to their clients. 

This applies to all lawyers, not only good trial lawyers. 

A lawyer who does not act honestly and with integrity at all times not only gets a bad name, but also runs the risk of being struck from the roll of legal practitioners if he or she is caught. 

The lawyer's duty to the court, as well as the need to disclose all relevant decisions and not to mislead the court.

3-Judgment  

A good trial lawyer must have the wisdom to make appropriate tactical decisions when conducting a case.

Although this should be done in consultation with the client, it is often said that the advocate is a representative and not a delegate of the client. 

This means that the judgment of the trial lawyer rather than the client should be followed when conducting the case. 

It is submitted, however, that in the light of the modern move towards client autonomy in most professions, lawyers should keep clients well briefed concerning their strategies. 

Furthermore, wherever possible, lawyers should give their clients sufficient information in appropriate language so that they can be part of the decision-making process. 

In many instances, however, there is very little time to make judgments during the cut-and-thrust of the trial, and a good trial lawyer must have the ability to think creatively on his feet.

4- Objectivity. 

A good trial lawyer has the ability to consider the case dispassionately and objectively. 

It has been said that this is easier where there is a divided bar as advocates, as opposed to attorneys, have no personal ties with their clients. 

In such instances the advocate is able to give both the client and the court an objective opinion un-coloured by any emotional attachments 

However, even where there is no divided bar, a lawyer should learn to stand back from his or her client's case in order to analyze its progress as objectively as possible. 

The rules of the advocates' profession specifically require that an advocate should not become personally, as opposed to professionally, associated with his or her client's interest.

5-Courage. 

It has been said that, 'the law is a form of civilized warfare' and the trial lawyer is 'the modern representative of the medieval champion'. 

Lawyers must have the courage to stand up for their client's best interests irrespective of the degree of hostility which may be aimed at them by the public and, sometimes, the court (for example, during recusal applications) . 

Trial lawyers must also have the courage to conceal their personal sensitivities, so that they do not display undue emotions to the court or the witnesses (for example, where they or their client's case has been harmed by a witness's testimony). 

In short, a good trial lawyer must be a courageous actor.

6-Alertness.  

A good trial lawyer is always on the alert: alert as to how the witnesses are responding; alert as to how the bench is reacting; alert as to how the opposition is conducting the case; and even alert as to what is going on in the court room.

7-Tenacity.  

Tenacity means that, within reason, a trial lawyer with a good case will keep pursuing it no matter how much opposition he or she meets from witnesses, the bench or opponents. 

As a general rule a lawyer should never embark on a course of action unless he or she is ready to justify it.

The lawyer should then be prepared to defend the action until all proper arguments in favour of it have been exhausted.

The trial lawyer is there 'to fight, not to capitulate’.

However, a lawyer should not be tenacious about a bad case, as this is likely to work against the interests of his or her client. 

There is no point in trying to support a cause that is insupportable.

8 - Sincerity. 

Sincerity is a very important quality for a successful trial lawyer. 

A lawyer who wishes to succeed must also appear to wish his or her client to succeed. 

If a lawyer indicates, consciously or subconsciously, to the court that he or she does not believe in the client's case, the chances are that the court will also not believe in it. 

It has been said in respect of the advocate's profession that 'if the advocate does not appear to believe in his client's cause ... he places his services at the disposal of his opponent' 

Conversely, lawyers may not, metaphorically speaking, lay aside their advocates' or attorneys' gowns to make their clients' causes their own.

9 - Humanity. 

A significant attribute of a good trial lawyer is the ability to display 'the common touch '. 

The ability to communicate easily and politely with people from all walks of life (advantaged and disadvantaged, rich and poor, urban and rural) is essential. 

Witnesses and judges are human beings, not robots. 

They all have their likes and dislikes, as well as their inherent prejudices and preconceptions. 

But while judges are trained to disregard them, witnesses are not. 

However, both are more likely to respond favourably to the cause of a lawyer who treats them with understanding and courtesy - in other words with humanity - than one who does riot. 

The same applies to their treatment of colleagues.

10 - Hard work.

Good trial lawyers are industrious and work very hard. 

They carefully 'claw the facts' so that they are fully aware of what has happened in the case, as well as such details as dates, names, times, exhibit numbers and so forth .

Memorizing facts is essential to the conducting of a successful case, because if a lawyer is not conversant with the important facts, 'all the virtues and brilliant improvisations will not help him’.

The nature of trial practice, however, is such that no sooner has the trial lawyer mastered the facts of one completed case, he or she will have to forget them as a new case is commenced. 

The process of clawing the facts begins all over again.

11 - Professionalism.

Lawyers should at all times maintain the honour and dignity of their profession. 

They should in practice, as well as in their private lives; abstain from any behaviour which may tend to discredit their profession (International Code of Ethics rule 2).

To this end they should render legal assistance with scrupulous care and diligence, including when they are assigned as counsel for an indigent person (International Code of Ethics rule l 0).

 

TOPIC 3: GENERAL ETHICAL DUTIES OF TRIAL LAWYERS.

A. DUTIES TO THE CLIENT.

i. Duty to fearlessly uphold the interests of the client 

• Basically means to be zealous advocates on behalf of clients 
• Trial lawyers have a duty to uphold the interests of their clients without regard to any unpleasant consequences to themselves or any other persons. 
• Advocates have the same privileges as the client in asserting and defending the client's rights and liberty by rendering every argument that can be legitimately advanced 
• They may take every point, technical or otherwise, that is fairly arguable on behalf of their clients. The same principles apply to all trial lawyers. 
• The advocate should act as the client‘s mouthpiece. 
• He should ensure that at least the outcome of the case should be favourable to his client. 
• He should also have a good grasp of the law and an ability to think on his feet. 
• A trial advocate should as far as possible and within the bounds of the law zealously and fearlessly defend the interests of his clients. 
• The duty of a barrister is to promote and protect fearlessly and by all proper and lawful means the best interests of the client without regards to the barrister‘s self interest or to any personal consequence. See Rondel v Worsley [1969] 1 AC 191 at 227 as per Lord Reid. 
• The advocate‘s duties must be within the bounds of the law, as no professional privilege exists if the actions of the advocate were to help the client in the commission of a criminal act. 
• He ought not to engage in conduct that jeopardizes the client‘s interests.
• He should shun mediocrity at all times regardless of the client‘s status in society- financial or otherwise.

See Dr. Khaminwa in “The Advocate”-“I was among the few lawyers who had the gut to represent outspoken radical political leaders and citizens perceived to criticize the KANU government”.

ii. Duty to Defend the Client 

He must do so to the conclusion of the suit even if that client fails to pay his fee. Once a suit is concluded an advocate is permitted to sue for his fees. 

This is the correct procedure of dealing with clients. An advocate should never abandon a case on the grounds that he had not been paid his fee but as stated above must conclude the suit to its finality then sue for his fees- J.P. Machira v Abok James Odera [2006] eKLR as per Ang‘awa, J.

 
iii. Duty not to breach client confidentiality 

As a general rule, trial lawyers may not divulge to the court, or any other person, information confided to them by their clients (International Code of Ethics rule 14).

It is submitted however that, as the confidence belongs to the client, such a disclosure could be made if the client, with full knowledge and appreciation of the consequences of the disclosure, consents thereto. 

The advocate-client confidentiality is protected under Section 34(1) of the Evidence Act which states: ―No advocate shall at any time be permitted unless with the client‟s express consent, to disclose and communication made to him in the course and for the purpose of his employment as such advocate…”

The Evidence Act establishes professional privilege between an advocate and a client. This is to enable the work of an advocate as an agent of the client. 

See Omari v Hassan (1956) 23 EACA 580

Omari v Hassan (1956) 23 EACA 580

The appellant was convicted of murder. During trial, counsel for the accused informed the Court that the accused person had refused to testify under oath, against his counsel‘s advice. The disclosure by the advocate was held, on appeal, to be a breach of professional privilege, and the trial court should not have allowed it to affect its mind in the deliberations. 

However, this privilege is not absolute and it may be overlooked where the disclosure pertains because An advocate is first an officer of the court, then a confidant to their client

i. any communication made in furtherance of any illegal purpose

ii. any fact showing that a crime or fraud has been committed since the commencement of employment of the advocate 

The solicitor holds documents in the right of his client, and can assert in respect of its seizure no greater authority than the client holds himself.

 See R v Peterborough Justices, ex parté Hicks, R v Peterborough Justices, ex parté Hicks,

Some solicitors, acting on behalf of an accused person, were given documents by the accused person, one of which was a forged document granting power of attorney to the accused. The solicitors went to court to challenge the seizure of the document by the police, under search warrant, claiming that the document was protected by legal privilege. It was held that as the client possessed no legal authority to hold it, then the claim must fail. 

Confidentiality is also constitutionally protected. 

See the following Articles of the constitution

(a) Art. 48 -Access to justice for all persons

(b) Art. 49(1)( c)-Right to communicate with Advocate

(c) Art. 50(2) (g)-Right to choose and to be represented by an Advocate

(d) Art. 50(2) (h)-Right to an advocate assigned by the State at State expense, if substantial injustice would otherwise result

(e) Art. 50 (2) (i)-Right to remain silent-See Pattni Case (2005)eKLR

(f) Art. 50 (2) (l)- Right to refuse to give self incriminating evidence.


iii. Duty to speak on behalf of clients and to ensure prosecution discharges onus 

Trial lawyers who appear in court for the defence in criminal cases are under a duty to say on behalf of their clients what the latter should properly say for themselves if they possessed the requisite skill and knowledge.

Furthermore, lawyers for the defence have a duty to ensure that the prosecution discharges the onus placed upon it to prove the guilt of the accused beyond reasonable doubt.

Do not mis-communicate 

Get what the client is saying and understand it. 

Learn the language or bits of the language they commonly use.

“When you listen to a client you can hear levels of communication that may deepen your understanding of the client’s problem”-Dr.Majalia Mjomba in “Presentation and Communication skills for the courtroom”.

iv. No duty to assist prosecutionUnlike prosecutors, defence lawyers are not obliged to disclose facts to the prosecutors or the court which will assist the prosecution case by proving the guilt of the accused.

Defence lawyers must however reveal all relevant cases and statutory provisions - including those against their contentions. 

See Thomas Patrick Gilbert Cholmondeley v Republic [2008]eKLR

Thomas Patrick Gilbert Cholmondeley v Republic [2008]Eklr

“the burden of proof of guilt is invariably upon the prosecution and at no stage does that burden shift to an accused person whether the accused person be the meanest beggar on our streets, or Lord Delamere whose grandson the appellant is said to be”… “there can be no question of reciprocal rights, or a level playing field or any such theory as between an accused person and the state…”

v. Duties to Disclose and Keep client informed 

The duty of keeping the client informed is an important duty and one that the surveys show is a major reason for criticism of the profession. 

The duty to disclose the likely success or otherwise of the actions that would be taken by the lawyer and alternatives that might be available could have been given greater emphasis. 

This is so especially in the context that litigation should be a remedy of last resort. 

An advocate who fails to honestly disclose the true chances of success puts his interests before those of his client as he would be seeking to earn higher fees through litigation rather than properly advising a client on the available alternatives that may be cheaper and more expeditious.

vi. Duty to Loyalty to the Client 

The advocate‘s loyalty must be undivided.

Advocates are committed to acting in the interests of the client to the exclusion of their own interests, or the interests of any third party. 

An advocate must not betray the client‘s trust by misappropriating client‘s money or assets. This is expressly provided for in section 80 of the Advocates Act. 

The principle was also upheld in the recent case of Kinyanjui v Republic [2010] eKLR

vii. Duty to carry out instructions 

As the legal advisor, it is key that you remain in control.

If in your considered opinion, the client‘s instructions are unlawful and/ or unethical, it is your duty to;

(a) Advise the client accordingly, if they insist,

(b) Decline to carry out the instructions

viii. Duty to account to the client. 

This also involves giving the client good notice when opting out of service of the client, and also refunding any moneys paid in excess of service, where necessary. 

This also involves the duty to account for any moneys received on behalf of the client and duty to advice the client of any requisite payments over and above their legal fees. 

This is also the duty to charge reasonable fee: in accordance with advocate‘s standing at the bar. 

An advocate is prohibited from what is known as self-dealing with a client. In other words, a lawyer cannot misuse to his benefit the assets of his client.
ix. Duty to expedite proceedings 

Justice delayed is justice denied. An advocate should at all times endeavor to ensure that client‘s matters are concluded in a timely fashion. 

He must avoid unnecessary delays which would be prejudicial to a client‘s interests. 

This duty is also owed to the court.

x. Duty of an advocate acting for both parties in a transaction not to act against one for the other 

If an advocate acts for both parties in the in the same transaction, he may not act for one against the other.

This was stated by the Court of Appeal in King Woollen v Kaplan & Stratton Civil Appeal No. 55 of 1999 (Unreported) 

The decision was upheld by the same court in Uhuru Highway Development Ltd & 3 others v Central Bank of Kenya & 4 Others [2003] KLR

Uhuru Highway Development Ltd & 3 others v Central Bank of Kenya & 4 Others [2003] KLR

Where an advocate who had acted for both parties in the preparation of a charge was barred by the Court of Appeal from appearing as a witness for one party against the other in an ensuing dispute before the High Court, which action was also proscribed by the Advocates (Practice) Rules, Rule 9.

xi. Client privilege and the duty not knowingly to mislead the court 

As a general rule in civil cases the client's privilege precludes a defence lawyer from making disclosures of privileged material without the client's consent’. 

In criminal cases defence lawyers may not, without their client's consent, disclose facts known to them concerning their client's character or antecedents. 

However, they must not knowingly put forward or let their client put forward false information with the intention to mislead the court. 

Likewise, defence lawyers must not indicate their agreement with information that the prosecution puts forward which they know to be false. 

Supreme Court of Kenya Petition No. 14 of 2014 Communications Authority of Kenya and Royal Media Services and 5 others (eKLR2015) Para 30: “The parties engaged in conduct the effect of which was to undermine the integrity of the court’s judgment”
 

xii. Trial lawyer's right to choose appropriate method of presenting case 

Trial lawyers have the implied right to present their client's case at the trial or hearing in such a way as they consider appropriate. 

 Thus, if the client's express instructions do not permit lawyers to present the case in a manner which they consider to be the most appropriate, they may withdraw from the case after seeking the approval of the court . 

Such withdrawal, however, must be done for good cause, and, where possible, in such a manner that the client's interests are not adversely affected (International Code of Ethics rule 1 I). 

Modern views concerning client autonomy, however, would seem to indicate that a lawyer should give the client an idea of the options available concerning a particular course of conduct, and seek to get the client's approval for the method chosen. 

In criminal cases however, the accused has a right, to testify in his defence, even if his lawyer's advice is not to testify. 

Should the client insist on testifying against his lawyer's advice, this would not be a ground justifying withdrawal by the lawyer.

xiii. Duty not to fabricate defences 

In criminal cases where Clients instruct their lawyers that they are not guilty, defence lawyers must put the defence before the court, even if the clients decide not to give evidence themselves.

Whilst defence lawyers may present any technical defences available to their clients, they must never fabricate defences on the facts.

See Penal Code-Chapter XI-Offences against the Administration of Justice Sec. 113-113.Any person who, with intent to mislead any tribunal in any judicial proceeding –

(a) Fabricates evidence by any means other than perjury or subornation of perjury; or

(b) Knowingly makes use of such fabricated evidence, is guilty of a misdemeanor and is liable to imprisonment for seven years.

xiv. No duty to enquire into truth of client's instructions. 

Generally there is no duty on trial lawyers to enquire as to whether their clients are telling the truth or not. 

However, where the instructions or other information are such as to cause the lawyers to doubt the reliability of the same they must, where practicable, check the truth of what their clients tell them to the extent that such statements will be relied upon by the court. 

The enquiry is on instructions themselves and other information

Why it may be important to check 

Client’s soundness of mind may be in question. 

The lawyer himself or herself might be in danger.

xv. Client insisting on pleading guilty against advice of counsel 

Where accused persons tell their lawyers that they did not commit the offence with which they are charged, but insist on pleading guilty for reasons of their own, defence lawyers should use their best endeavors to persuade them to plead not guilty. 

If clients persist in their guilty plea, against the advice of counsel, the latter may continue to represent them. 

However, they may do so only after they have advised the client what the consequences will be. 

The lawyer must also advise the client that what can be submitted in mitigation can only be on the basis that the client is guilty.

Thus, it cannot be suggested in mitigation that the facts are such that the elements of the offence have not been established.

In some jurisdictions e.g. SA it is submitted that if there is doubt about the client's guilt, his lawyer should insist on a not-guilty plea being entered, or be entitled to withdraw from the case should the client not consent to the not-guilty plea.

xvi. Duty not to put right to compensation above interests of clients or justice 

Lawyers should never put their right to compensation for services above the interests of their clients and the administration of justice (international Code of Ethics rule 1 7). 

The lawyer's right to demand payment of a deposit or out of pocket expenses and commitments, failing payment of which they may withdraw from the case or refuse to handle it, should never be exercised at a moment at which the client may be unable to find other assistance in time to prevent irreparable damage being done to the case (International Code of Ethics rule 1 7).
 

xvii. Duty to act competently and with due diligence.

xviii. Duty to act with utmost good faith.

B. DUTIES TO THE OPPONENT(S). /OPPOSING COUNSEL  

The opponent would be the opposing counsel 

Advocates owe a duty to fellow advocates in the profession, these may be dubbed as the general duties of good faith and courtesy. 

These duties extend from the pre-trial stage up to the point of sentencing and/or acquittal. 

They include:

i. Mentioning of authorities to be used in court 

It is a sensible practice for lawyers to tell their opponents of the authorities on which they intend to rely to prevent the chance of the court being misled by a failure to cite all relevant authorities. 

Advocates must not unnecessarily embarrass opposing counsel by not giving adequate notice of one‘s legal argument and authorities. 

See Provision of Civil Procedure Rules Order 11-Pre trial directions and Conferences 

Order 11 Rule 2: Pre trial questionnaire at Appendix B.

Order 11 Rule 2: Pre trial questionnaire at Appendix B.

1. If made contact with other party to narrow down on issues.

2. Full disclosure of documents.

3. Need for inspection of documents and if so, when.

4. Filing and serving of interrogatories.

5. Exchange of witness statements.

6. Agreement on experts reports.

7. Schedule of loss and damage.

8. Which oral evidence to be dispensed with.

9. Bundle of documents and case summary.

10. Skeleton arguments.


ii. Duty not to unnecessarily embarrass an opponent 

As a matter of professional courtesy, trial lawyers should not unnecessarily embarrass their opponents, for example, by not giving them notice of legal points not evident from the papers which may take them unawares, or by taking surprise exceptions, or technical or other procedural points which may embarrass them if they are not notified in advance. 

Such practices not only undermine the reputations of colleagues, but also that of the practicing profession - something that all practitioners are bound to uphold

iii. Omission of case or provision by opponent 

As has been previously mentioned, if a trial lawyer knows that an opponent has omitted a case or legislative provision or makes an incorrect reference to a case or provision, it is the duty of the trial lawyer to draw attention to it even if it assists the opponent's case.

iv. Courtesy and respect towards colleagues 

A trial lawyer's behaviour towards opponents should not be any different from his or her behaviour towards the court. 

Opponents are entitled to courtesy and respect on the same basis as the court. 

Lawyers who treat opponents with rudeness and a lack of courtesy are unlikely to gain their respect and cannot themselves expect to be treated politely. 

In either case such attitudes will do little to advance the cause of their clients or indeed their own careers.

They are likely to receive little co-operation from their colleagues and, while they may hold the upper hand when displaying such attitudes, at some future stage they may be in a much weaker position, and may well have to rely on the good offices of their opponents to advance their client's best interests.

Advocates are advised to maintain a professional manner, and would be well advised to remember the objectivity and detachment inherent in professionalism. They therefore must not send correspondence to, or communicate with the opposing counsel in a manner that is abusive, offensive, or otherwise inconsistence with the proper tone of a professional communication.

Advocates must specifically agree with the opposing counsel reasonable requests concerning trial dates, adjournments, and any waiver of procedural formalities and any similar matters that do not prejudice the right of the client. 

An advocate also has a duty to deal promptly with communication from professional colleagues (opposing counsel). Communications that require an answer must be answered promptly. Similarly advocates are not permitted to communicate or to negotiate a matter directly with any person who is represented by another lawyer except with the express consent of the opposing counsel. 

Duty to not communicate with the judicial officer without the presence of opposing counsel, unless in circumstances allowed by the Court.

v. Courtesy and Respect-Areas

1. Salutation-”Senior”, “Wakili”

2. Making space for seating.

3. Order of addressing court.

4. Allowing colleague to look at a document in your possession.

5. Accommodating genuine reasons for adjournment application.

6. Conserving time allocated.

7. Keeping emotions and high tone in check.

8. Focus on issues, not the person.


vi. Duty not to inconvenience or harass opponents

It is submitted that it would be unprofessional to deliberately inconvenience or harass an opposing counsel, for example, by deliberately delaying the service of a notice until a time chosen so that its expiry will fall most inconveniently to the opponent, such as public holiday periods that are interspersed with work days when the opponent may be away.

Areas of inconvenience or harassment.

1. Failure to inform an out of town counsel not to travel.

2. Insisting on attendance of witnesses who are aware cannot attend that time.

3. Insisting on makers of documents where earlier agreed on admittance of documents had without calling maker.

4. Insisting that a counsel new in a matter proceeds even before they have studied file.

5. Delaying conveying of payment of decretal sum or consideration in conveyancing.


vii. Duty when prosecuting to provide evidence assisting the defence 

Prosecuting lawyers are under a duty to ensure that all relevant evidence is either presented by the prosecution or made available to the defence. 

Advocates must not unlawfully obstruct another party‘s access to evidence unlawfully alter or conceal a document or other material having potential evidentiary value nor shall he assist another person to do so.

The Principles were set out in the SA case of Shabalala v AG of Transvaal 1995(2)SACR 761(CC).

Shabalala v AG of Transvaal 1995(2)SACR 761(CC).

1. No blanket privilege over all documents in police file.

2. Ordinarily accused be allowed access to documents in police docket which are exculpatory.

3. Right to fair trial includes right to witness statements, whether or not the witnesses will be called.

4. State may resist access for reasons that such access not justified or will lead to risk to informer or state secrets.

5. Even if State justifies the denial of access, still remains discretion of court, balancing between prejudice and the risk of not having a fair trial.

See Article 50 (2)

Article 50 (2)

b-be informed of charge in sufficient detail to answer to it. c- Have adequate time and facilities to prepare a defence.

j- Be informed in advance(emphasis mine) of evidence prosecution intends to bring against him and have reasonable aces to that evidence. 

See George Ngodhe Juma Case Misc. Cr. Application. 345 of 2001

George Ngodhe Juma Case Misc. Cr. Application. 345 of 2001

Applicant’s charges in a Magistrates court wanted witness statements and exhibits.

Relying on the then Constitution’s Sec. 70, 77(1) and 77(2).Meaning of “adequate time and facilities to prepare one’s defence”.

Described what a fair hearing is.“The purpose of a prosecution is not to obtain a conviction”(page 13).

Guides to exercise of discretion (Page 16.)

i. If will make witness recant statement or if will intimidate him/her.

ii. If statement is sensitive/not in public interest to disclose it(national security or endangering witness or their family).

iii. If statements has details that can lead to commission of another offence or alerts someone not in custody that they are a suspect.

iv. If discloses method of detecting crime.

v. If may lead to a domestic risk.

As per Mbogholi Msagha.J and Kuloba.J

Still on matters pertaining to evidence An advocate should not falsify evidence, meaning that he has to be truthful to the opposing counsel. He/she should honor his/ her word. Fraudulent or deceitful conduct by one advocate towards another will render the offending advocate liable to disciplinary action. 

Advocates must also not make a frivolous discovery request or fail to make diligent effort to comply with a legally founded discovery request by an opposing party.

viii. Duty to avoid personality conflicts with opponents 

Clients, not the trial lawyers, are the litigants and ill feelings between clients should not influence counsel.

Personality conflicts between opposing lawyers should be avoided.

It improper to allude to the personal history, personal peculiarities or idiosyncrasies of counsel on the other side.

ix. Duty to obtain opponent's consent before placing further material before the court 

It would be improper for counsel to attempt to place any further material of whatever nature before the court, after judgment has been reserved, without the consent of opposing counsel.

The latter's consent should not be unreasonably withheld, particularly when it will assist the court to come to a correct judgment. 

If consent is unreasonably withheld the proper course is to request the court to receive the further material , or where appropriate, to make an application to re-open the case 

Duty to seek consent from opposing counsel when introducing new evidence after substantial hearing of the case has been completed.

x. Duties when interviewing witnesses on the other side in criminal matters 

In Shabalala v Attorney-General of Transvaal (supra), the Constitutional Court set out the law regarding the interviewing of State witnesses by the defence as follows:

Shabalala v Attorney-General of Transvaal

1. Not consult with prosecution witnesses without consent of prosecuting authority.

2. Accused can consult State witness if not so doing would impair right to fair trial.

3. In such case accused should seek consent of DPP and if allowed, DPP’s rep. should be at the consultation and take any recording. If consent withheld, can apply to court.

4. Does not mean compelling consultation if witness declines such consultation or if it will intimidate witness, tamper with evidence, reveal state secrets or identity of informer.

5. Court may exercise on case by case basis discretion to permit consultation in interest of justice.


xi. Duties when interviewing witnesses on the other side in civil matters


When interviewing witnesses in civil matters:

(a) If before have testified, give adequate notice.

(b) Be after ascertaining the other side will call the witness or plans to get a statement from them.

(c) Should be necessary for assisting litigant in their case.

(d) If has NOT testified, other side need not be represented nor attend.

(e) If has testified, but litigation has not ended, the witness’ legal representative must be present unless the legal rep. was given notice and declined to attend.


xii. Duties when interviewing a judicial officer
 

General rule (General Council of the Bar rules) Undesirable for a counsel in a contested case to seek to interview judicial officer hearing or about to hear a case, in absence of the opponent or their advocate, and without their consent. 

Notice of intention to conduct such interview must be given.

C. DUTIES TO WITNESSES. 

An advocate should thoroughly investigate and marshal the facts; therefore an advocate may properly interview any person, because a witness does not belong‘ s to any party. 

His duties to a witness include the following:

i. Duty of courtesy 

As a general rule trial lawyers should, as far as possible, be courteous to witnesses at all times: 

'Witnesses must be treated with courtesy and respect. 

They are doing a public duty in coming to court' (per Snyman J in S v Azo 1974 (I) SA 808 (T) at 81 0-811).

 It is more likely that counsel will get the information he or she requires from a witness if a polite and cooperative relationship is developed with the witness concerned. 

An argumentative attitude is likely to elicit much less information and to irritate the court. 

Examples of courtesy

(a) An advocate has a duty to inform a witness about the date a case is going to be heard promptly

(b) An advocate must furnish the witnesses with the full details of the case so that their testimony can be correct.

(c) The Advocate should refrain from asking indecent, scandalous, insulting or annoying questions. The Court has discretion to restrain such questions, despite the fact that they may reveal relevant information to the case- sections 159-160, Evidence Act.

(d) Moreover, an advocate should never be unfair or abusive or inconsiderate to adverse witnesses or opposing litigants, they should ask questions intended legitimately to discredit the assertions of the witness, but not to insult or degrade them.

ii. Duty not to harass or badger witnesses 

Trial lawyers should refrain from harassing, badgering or bullying witnesses.

Not only is such conduct unlikely to ensure co-operation from the witness, but it is also likely to irritate the court. 

Few witnesses are likely to be badgered into making admissions they do not want to make. 

It is better to expose inconsistencies in a witness's evidence through polite, carefully structured questioning, and to draw attention to the results in argument and through well written submissions.

iii. Duty during cross-examination not to make unsubstantiated attacks on the character of a witness

Questions which affect the credibility of a witness by attacking his or her character, but are not otherwise relevant to the enquiry, should not be put unless counsel has reasonable grounds for believing that the imputations conveyed by the questions are well-founded or true. 

The rules go on to state that it is the duty of counsel to guard against being made the channel for questions which are only intended to insult or annoy either the witness or any other person, and to exercise his or her own judgment both as to the substance and form of the question put . 

In cases where an advocate is instructed by an attorney who informs him or her that the imputation is well-founded or true, without merely instructing counsel to put the question, the advocate is entitled prima facie to regard such instructions as reasonable grounds for so thinking and may put the question accordingly 

An advocate may not accept the statement of anyone other than the instructing attorney. 

Where the statement is made by a person other than an instructing attorney, counsel must ascertain, as far as is practicable, that there are satisfactory reasons for the statement.Other trial lawyers should do likewise. 

An advocate must not barger witnesses with unreasonable questions. He or she should therefore be tactful and gentle. Sallazar v Republic: the Court deplored an advocate‘s disrespectfulness towards witnesses and the Court at large. 

iv. Duty during cross-examination to keep defamatory statements within qualified privilege 

It is submitted that it would be unethical and an abuse of the court process for a lawyer to put questions simply to insult or annoy the witness: 

'No cross-examiner is entitled to insult a witness or to treat him in a manner in which these witnesses were treated, without there being a very good reason for it' (per Snyman j in S v Azo supra at 810-811 ). 

A trial lawyer's defence of qualified privilege against an action for defamation arising from cross-examination only extends to statements which are

(a) Pertinent or germane to the issue, and

(b) Which have some foundation in the evidence or circumstances surrounding the trial (Moo/man v Slovo l 964 ( l) SA 760 (W) at 762; Pogrund v Yutar 1967 (2) SA 564 (A) at 570). 

The approach is that such questions, whether or not the imputations are well-founded, should only be put if in the opinion of the cross-examiner, the answers would or might materially affect the credibility of the witness.

If the imputation conveyed by the question relates to matters so remote in time, or is of such a character that it would not affect the credibility of the witness the question should not be put.

v. Duty not to wantonly or recklessly accuse the witness of a crime 

He should not make baseless attacks on a client‘s character. There must be sufficient reason for attacking a witness‘character before launching such an attack- (s) 158, Evidence Act. 

An advocate defending a client on a criminal charge is not entitled to wantonly or recklessly attribute to another person the crime with which his or her client is charged. 

The advocate may not do so unless the facts or circumstances given in the evidence or rational inferences drawn from them, raise at the least a not unreasonable suspicion that the crime may have been committed by the person to whom the guilt is so imputed, the same principle should apply to all trial lawyers.

vi. Duty not to interview witnesses who have been sworn in 

It is generally undesirable to interview any witness after he or she has been sworn in or has made a solemn declaration to tell the truth. 

Furthermore, it would be improper to interview a witness who is under cross-examination, unless circumstances make such an interview necessary. 

Where such circumstances exist a lawyer who desires to hold the interview must inform his or her opponent before doing so.

It is also generally improper for an advocate to interview a witness after cross-examination is completed and before re-examination. 

In cases where circumstances render it necessary to interview a witness under cross- examination or before reexamination, and the opponent objects, the court should be asked for permission.

vii. Duty not to take an affidavit from a witness unless it is to be handed in as evidence 

Affidavits should not usually be obtained by lawyers from prospective witnesses, except in cases in which their evidence is intended to be presented by means of the production of the affidavits deposed to by.

viii. Duty to consult with one's own witness before trial 

There is a duty on all trial lawyers to consult with their witnesses before trial, not with a view to 'schooling· them, but simply to prepare them for, the ordeal of testifying in court. 

For example, it is helpful to explain to the witness the procedure concerning evidence-in- chief, cross-examination and re-examination, as well as how he or she should dress for court and address the court.

The lawyer should also take them through the evidence without rehearsing them.

Morris suggests that lawyers should prepare their witnesses for cross-examination as follows (Daniels (ed) Morris Technique in Litigation 4ed (1993) at 135):

'(l]t is permissible to prepare the witness in the general sense for cross-examination somewhat in the following terms: "Listen to the question before you answer. If you do not understand it, say so. If you don't know any answers don’t guess, just say that you don't know. Don't worry about what the man has in mind when he asks his question, just give a direct answer. Answer as shortly as possible and don't make speeches. "'

ix. Duty not to Induce Witnesses 

He should avoid any suggestion calculated to induce any witness to suppress evidence or deviate from the truth. However an advocate may tell the witness that he or she does not have any duty to submit to an interview or to answer questions propounded by the opposing counsel unless required to do so by judicial or legal process. 

Advocates should not suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce. Advocates should not advise or cause a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of becoming unavailable as a witness. However, except when legally required, it is not an advocates‘duty to disclose any evidence or the identity of any witness.

Advocates should not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witnesses‘testimony or the outcome of the case. In addition, an advocate may advertise for witnesses to a particular event or transaction but not for the witness to testify to a particular version that advances his case.

D. DUTIES TO THE COURT.

i. Duty to uphold the administration of justice 

As an officer of the court, an advocate should only use proper and lawful means to promote and protect the interests of his clients.

Advocates must not knowingly mislead the court. 

He or she should not fabricate evidence, coach witnesses to deceive the court or support any form of perjury.

See Abraham vs. Justun [1963] 2 All ER 401 at p.404

Abraham vs. Justun [1963] 2 All ER 401 at p.404

Lord Denning MR explained counsel‘s duty as follows: ― [It is an] advocate‘s duty to take any point which he believes to be fairly arguable on behalf of his client. An advocate is not to usurp the province of the judge. He is not to determine what shall be the effect of legal argument. He is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby deceives the court. 

In this regard also they have a duty not to mis-lead the court

(a) Trial lawyers must assist the court in the administration of justice.

(b) They have an obligation to use only proper and lawful means to promote and protect the interests of their clients.

(c) They must not deceive or knowingly or recklessly mislead the court (see also General International Code of Ethics rule 6).

(d) Lawyers should never call a witness whose evidence is, to their knowledge, untrue. This does not however mean that a lawyer may not call a witness whose evidence he merely suspects to be untrue.
Possible areas of misleading

1. Reason for absence of client or witnesses from court.

2. Reason for absence of advocate. 

3. Explanation for delay in filing documentation. 

4. Statements previously made in court where record cannot be immediately verified

5. Extent of damage or loss.

6. Value of property used as surety. 

7. Financial of health status of client. 

8. Status of occupancy or other status quo.

ii. Duty to be Fair/ The duty when prosecuting to act with scrupulous fairness 

Only a lawyer who is fair can be aptly described as an officer of the Court. The duty of fairness is inherent in the nature of the work performed by lawyers. 

Lord Reid summed it up in Rondel v Worseley (1969)A.C. 191

Rondel v Worseley (1969)A.C. 191

As an officer of the Court concerned in the administration of justice, the advocate has an overriding duty to the Court, to the standards of his profession and to the public, which may and often does lead to a conflict with his client‘s wishes...accordingly an advocate has a duty to be fair, fair to the Court and fair to the public. So important is fairness to the Court and the public that the public duty prevails over the duty to the client if there is a conflict. It is by fairness that the public judges the profession. 

First and foremost duty is as officer of court.

1. If prosecuting ensure every material point is made that supports the prosecution.

2. Not hold back evidence or previous records.

3. Present evidence dispassionately and with fairness.

4. Always remember are representing interests of justice, not a party.

5. Lay the facts fairly and impartially

6. Assist the court on all matters of law(Note the court may be new in the criminal division)

7. Mention all relevant facts and mitigating circumstances.

8. Not be out to get a conviction by all means at their disposal, where such means do not give the court full information concerning the facts.

9. Inform the court of its sentencing power if court apprehensive of its having such powers.


iii. To obey Court Orders:

The advocate must maintain utmost respect for court orders as the dignity of the Court cannot be sacrificed at the altar of the client. Advocates need to avoid issues like:

(a) Obtaining and executing decrees without sending the draft to the other side for approval- Mwangi Mbothu v Gachira Waitimu CA Civil Application No. NAI 23 of 1993

(b) Showing the client how to circumvent Court orders and disobey injunctions as was the case in Shuck v Gemer (1846) 2 Ph 113

(c) Obtaining ex parté injunctions without full disclosure as was the case in Tiwi Beach Hotel v Staum (1940) 2 KAR 189

iv. Courtesy 

An advocate should at all times uphold the dignity of the court through respectful conduct and courteous speech. 

He should never adopt a confrontational view with the Court, even when there is reason to believe that the judicial officer‘s position is at odds with the law. 

Lawyers must at all times be courteous to the court and to all those with whom they have professional dealings. 

They should ensure that while conducting a case they do nothing to undermine the dignity or reputation of the court.

Areas of Courtesy towards court

1. Punctuality of the court.

2. Delivery of rulings on judgment.

3. Time allocations for commencement of hearing.

4. Permission to leave the court.

5. Other assignments the court may be handling.

6. Court’s workload for the day.

7. Court’s workload for the day.

8. Court officers-clerks, orderlies, interpreters.
§ See State of the Judiciary report 2012/13 Page 165

“Previously, judicial officers maintained records by hand, which would then be transcribed and typed.

Critical processes to turn the wheels of justice could not begin without manually filling forms. All these activities created a mountain of paperwork, together with the attendant bureaucracy and delays, which bred inefficiency and corruption.”

 
v. Duty to expedite proceeding / Do not waste the court's time 

An advocate should make efforts to ensure that he or she does not waste the courts time through unnecessary proceedings and technicalities.  

An advocate should also aid in speedy decision-making by not subjecting the judge to excessive material or more documents than strictly necessary which do not facilitate decision-making or speedy resolution.

Without detracting from his duty to his client, counsel can and should exercise in the interests of justice as a whole a proper discretion so as not to prolong cases unnecessarily.

See Ashmore v Corporation. Of Lloyd’s [1992] 1 WLR 446, at p.453

Ashmore v Corporation. Of Lloyd’s [1992] 1 WLR 446, at p.453

Lord Templeman said ―The parties and particularly their legal advisers in any litigation are under a duty to cooperate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of the counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner. In nearly all cases the correct procedure works perfectly well. But there has been a tendency in some cases for legal advisers, pressed by their clients, to make every point conceivable and inconceivable without judgment or discrimination. 

Trial lawyers must take all reasonable and practicable steps to avoid wasting the court's time. 

They should, when asked, inform the court of the probable length of their case. 

They should also inform the court of any developments which may affect the information already provided. 

Lawyers should always be present in court at the appointed time. 

An advocate should not seek to arrange a postponement of a matter to suit his or her convenience unless the client has agreed, and the lawyers on the other side have been told of the reasons. 

See Civil Procedure Act Section 1A (Over-riding objective-the oxygen principle) to solve matters expeditiously and it is the work of all judicial officers to give effect to the over-riding objective.

1A. Objective of Act

1. The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.

2. The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).

3. A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.

What wastes time.

1. Reading passages verbatim.

2. Asking irrelevant foundational questions.

3. Repeating a pint that has been addressed.

4. Not making advance arrangements for witnesses’ availability.

5. Not making advance arrangements for availing of exhibits.

6. Not arranging documents wish to refer to in time.

7. Not marking pages that will refer to.


vi. A lawyer should not seek to influence a judge, tribunal or other official by means prohibited by law

Which takes precedence? The trial advocate’s duty to the court, or his/her duty to a client? 

Often times, an advocate‘s duty to his or her client conflicts with that to the court. This arises in instances such as, when a client confesses to having committed a crime, when a clients‘ intends to give a false testimony or when an advocate is in possession of facts which may prejudice his clients‘ case. This begs the question: which duty is supreme?

1. Jurisprudence in Commonwealth

The jurisprudence with regard to this matter in most commonwealth jurisdictions appears to incline to the fact that the duty owed to the court is higher than that owed to the client. 

In Giannarelli v Wraith (1988) 165 CLR 543, 556-7

Giannarelli v Wraith (1988) 165 CLR 543, 556-7

Mason CJ said

“The peculiar feature of counsel's responsibility is that he owes a duty to the court as well as to his client. His duty to his client is subject to his overriding duty to the court. In the performance of that overriding duty there is a strong element of public interest…The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary.” 

The rationale is that the administration of justice in an adversarial system depends in very large measure on the faithful exercise by an advocate‘s independent judgment in the conduct and management of the case. The court relies on the integrity of the advocates as the finding of facts is entirely based on the opposite views put forward by opposing advocates.

See Arthur Hall v Simons [2000] 3 All ER 673 19133 Neb. 283, 289,
 

Arthur Hall v Simons [2000] 3 All ER 673

Lord Hoffmann stated at p.687 and p.693:- ―

“Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice ... The substantial morality of the English system of trial and appellate procedure means that the judges rely heavily upon the advocates appearing before them for a fair presentation of the facts and adequate instruction in the law. They trust the lawyers who appear before them; the lawyers trust each other to behave according to the rules, and that trust is seldom misplaced... “ 

See Re Integration of Nebraska State Bar Association 19133 Neb. 283, 289, 275 N.W. 265, 268 (1937)

Re Integration of Nebraska State Bar Association 19133 Neb. 283, 289, 275 N.W. 265, 268 (1937)

It was stated that a lawyer's primary duty is to assist judges and all court staff in the operation of the court system and administration of justice. It was further stated that an attorney owes his or her first duty to the court. He or she assumed his or her obligations toward it before he or she ever had a client. His or her oath requires him or her to be absolutely honest even though his or her clients‘ interests may seem to require a contrary course. The [lawyer] cannot serve two masters and the one undertaken to serve primarily is the court.

It is also argued that an advocate is not the servant of the client that engages him, but the true position is that he is that he is the servant of justice itself. He is thus in a sense a member of the body judicial and hence it follows that he can commit no graver betrayal of his function than to deceive the court by means direct or indirect. This implies that when there is a conflict between the advocate‘s duty to the client and to the court, the duty to the court, which is the agent of justice, shall reign supreme.

2. Public Policy 

Public policy as well seems to lean towards this view. 

This is well illustrated by a British case where Lord Brougham in the 19th century when defending Britain's Queen Caroline, who faced an attempt by her husband, King George IV, to obtain a divorce by charging her with adultery, thus ruining her name and putting at risk her fortune and position in society. Lord Brougham let it be known that in the queen's defense he would prove that the king himself was guilty of adultery and had secretly married a Catholic, thus putting at risk his title to the throne. His tactics outraged many who felt he went beyond the bounds of ethical advocacy. He justified his conduct as follows:

"[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons. And in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion." Later on at a dinner,[…] the most respected Chief Justice Cockburn looking disapprovingly at Brougham, Cockburn stated that while it was appropriate to be a zealous advocate, a lawyer should not be an "assassin." 

See Rondel v Worsley it was stated that in addition to the duty owed to his client, a barrister owes ―…an overriding duty to the court, to the standards of his profession, and to the public.

3. Provision of the Law 

The law equally provides that an advocate is an officer of the court as per S. 55 of the Advocate‘s Act and therefore duty bound not to mislead the court regardless of the client‘s interests. 

In acting in the best possible way for the client, the advocate must, while being fearless in the cause of the client, do so within the law. 

The compromise: Courts however have not entirely been oblivious of the advocate‘s duty to the client. Some have attempted at striking a balance between these conflicting duties in a way which will prevent the Court from being misled or the client from being placed unnecessarily in jeopardy.

See the following cases

R v Davis [2006] EWCA Crim 1155

The appellants appealed against their convictions, on the grounds that certain prosecution witnesses had been kept anonymous from them. The witnesses had attended the trial for cross-examination and were observed by the judge and jury, but had given their evidence from behind a screen and had their voices disguised to prevent the appellants identifying them.

This had raised an issue as to whether counsel for the appellants should be permitted to see the witnesses (which would assist them in their task of cross-examining) even though their clients could not see the witnesses. Counsel were concerned about their conflicting duties, namely:

(a) A duty to the court to keep the witnesses anonymous (breach of which duty would be a contempt of court), and

(b) A duty to their client to describe the witnesses to them (on the basis that this was relevant information).

The court did not in this case prefer the barrister‘s duty to the court to the barrister‘s duty to his client. The court held that the barrister could perform his duty to both by cross-examining from behind the screen. However, if the client wished to obtain the possible benefits of his barrister being able to see the witness‘ demeanour when cross-examining, then this could only take place if the client consented to a limitation on the barrister‘s usual duty to disclose all relevant information to the client.

Oceanic life Insurance v

The duty to the Court tends to be framed in such a way as to communicate the Public Interest that confidence in the institution (Court) be maintained, therefore overrides the other.

Competition between the duty of the advocate to lay before the court all relevant evidence, and the duty to their client not to reveal communication between them
 

Arthur Hall v Simons [2000] 3 All ER 673

In Lord Hoffmann stated that advocates ―also owe a duty to the court and the administration of justice. They may not mislead the court or allow the judge to take what they know to be a bad point in their favour. They must cite all relevant law, whether for or against their case. In view of these ―divided loyalties to the Court, in which circumstances does one duty override the other?

Waugh v British Roads Board (1979) 2 All E.R. 1169

In the Plaintiff‘s husband was an employee to the board, and was killed while in the course of his duties in an accident. An internal investigation was done and a report written, headed ―For the Board‘s Solicitor .

The Plaintiff asked the Court to order discovery of the report. The Board claimed professional legal privilege over the report. The Board based this on the fact that the report was for two purposes:

i. To establish the cause of the accident; and

ii. To enable the board‘s solicitor to advise in the litigation to ensue.


The Court ordered discovery. The Board appealed. The Appeal Court overturned that decision. The Plaintiff appealed. The House of Lords held that there were two competing principles involved:

i. All relevant evidence should be made readily available; and

ii. Communication between a client and his lawyer should be allowed to remain confidential.

It held that public interest was best served by confining the privilege within narrow limits. A document was therefore only privileged from production on the basis of the legal professional privilege if the dominant purpose for which it was prepared was that of submitting it for advice. Since the purpose for the report was for advice and legal use was merely subsidiary, the House of Lords held that the Board‘s claim would fail.

vii. Personal responsibility for conduct 

Trial lawyers are personally responsible for the conduct and presentation of their cases in court. 

They must exercise personal judgement on the substance and purpose of statements made and questions asked. 

Trial lawyers are at all times individually and personally responsible for their own conduct. 

This includes their professional work in and out of court .

Privilege vs. Responsibility

Lawyer must not misuse privilege of court proceedings to besmirch character of witnesses or opponents.

May not attract a defamation suit but loses respect in eyes of the court, fellow colleagues and general public in court. 

Avoid statements that cannot substantiate. 

Do not ask a question whose answer you do not know. 

See JP Machira v E.A. Standard JP Machira v E.A. Standard

The standard carried pictures and a caption alleging the plaintiff had fought with a client.

“An angry businesswoman collars a High Court advocate yesterday –in a punch-up that brought courtproceedings to a standstill. The fight started in the corridors”.

The plaintiff did not fight back; he kept cool under the lady’s attack.

Defence struck out in ruling of Kuloba, J on 15.11.2001, case set down for assessment of damages.

viii. Do not give personal opinions
 

Another rule worth following from English legal practice is that, as a general rule, trial lawyers should not assert a personal opinion on the facts or the law. 

They may however do so if:

(a) invited to express a personal opinion by the court;

(b) they are appearing before a tribunal; or

(c) it is their duty to do so. 

Trial lawyers should always speak in their role as lawyers and not in their personal capacities. 
 

See illustration

Lord Erskine defending Tom Paine

Richard Du Cann in The Art of the Advocate(1980)40)

Erskine: “I will now lay aside the role of the Advocate and address you as a man”.

Judge: “You will do nothing of the sort. The only right and licence you have to appear in this court is as an advocate”.

Opinions one may hold

i. State of the Judiciary

ii. The Executive or Legislative arms of government.

iii. Ethical and moral issues.

iv. Freedom of religions.

v. Freedom of conscience.
 

Remember the courts are courts of law. 

Statements in court should be in relation to what the law provides on the issue under discussion.

ix. All relevant decisions to be disclosed 

Trial lawyers must ensure that the court is informed of all relevant decisions and legislative provisions of which they are aware. 

This applies whether the effect is favourable or unfavourable towards their cases. 

Thus, if one of them omits a case or provision, or makes an incorrect reference to a case or provision, it is the duty of the other to draw attention to it even if it assists the opponent's case. 

Lawyers may take every point, technical or otherwise, that is fairly arguable on behalf of their clients.

They must, however, bring any procedural irregularities to the attention of the court during the hearing, and not reserve such matters to be raised on appeal or review .Examples: Age of a party where age is relevant; Sentence as prescribed by law; Absence of material evidence such as medical , forensic or expert reports.

x. Knowledge of facts assisting opponent 

Except when prosecuting, trial lawyers who know of facts or witnesses likely to assist their opponents are not obliged to inform the latter or the court about them to the detriment of their clients. 

However, if they know that a relevant affidavit has been filed in the proceedings and is therefore notionally within the knowledge of the court, there is a duty on the lawyer concerned to inform the judicial officer of its existence.

Summary 

In general, the duties of prosecutors towards the courts can be summarized as an obligation of honesty and directness. 

This supersedes all other obligations. 

In an adversarial system where the findings of fact are based almost entirely on the opposing views put by counsel, with the judge playing a primarily passive role, the courts are highly dependent upon the integrity of the lawyers who appear before them. 

The need for integrity is absolute.

The courts expect complete honesty concerning such matters as the reasons for an adjournment, times of delivery of notices or letters, apologies for the trial lawyer's own lateness of arrival, and so forth.

E. DUTIES TO STATE  

Basically these are DUTIES TO THE ADMINISTRATION OF JUSTICE.

i. Duty to assist the State as prosecutors when called upon 

It is submitted that when asked to assist the State in the administration of justice as a prosecutor, lawyers should be prepared to do so as part of their function as officers of the court.

In the case of the advocates' profession the same rules as those for refusing a 'cab rank' brief should apply if counsel wishes to decline a brief as prosecutor.

Although attorneys are not bound by the 'cab rank' rule, there is an expectation that they should also assist in strengthening the administration of justice where they have the necessary skills to do so.

See Office of the DPP Act No. 2 of 2013

ii. Duty to assist the State by appearing in legal aid matters when called upon 

It is a strong tradition of the advocates' profession that its members should undertake to do pro deo work when called upon to do so by their bar councils or the courts. 

Pro deo work has now been subsumed under the legal aid scheme, and there is now a duty on all trial lawyers to do legal aid work when called upon to do so by their bar councils or the courts. 

Although the 'cab rank' rule does not apply to attorneys, they are expected to assist in cases 'assigned by a " competent body' (International Bar Association International Code of Ethics rule 17), which, it is submitted, could be interpreted to include the Legal Aid Board. 

Examples

1. In Kenya, have LSK Legal Aid week.

2. Pauper briefs under Registrar of the High Court.

3. Volunteer lawyers for Legal Aid Agencies.

iii. National Council for the Administration of Justice 

Section 34 Judicial Service Act No. 1 of 2011 

Mandate: Ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system.

Functions:

1. formulate policies relating to the administration of justice;

2. implement, monitor, evaluate and review strategies for the administration of justice;

3. facilitate the establishment of Court Users Committees at the county level; and

4. mobilize resources for purposes of the efficient administration of justice.

Composition

1. CJ-Chair

2. CRJ-Secretary

3. Ministry of Justice

4. Office of DPP

5. National Police Service

6. Kenya Prisons Service

7. Ministry of Gender, Children and Social services.

8. Witness Protection Agency

9. Probation and after care services.

10. Office of the President (Cabinet Office) 

Duties to Admin of Justice


1. Act ethically at all times-to maintain proper reputation and integrity in eyes of clients, courts, colleagues, public.

2. Not expose themselves to litigation-Affects their practice and personal reputation. Arises not just from trail but advise, undertakings or costs.

3. Not make affidavits in cases they appear.

4. Prepare thoroughly for every case.

5. Not take on too many cases. 

6. Be properly dressed.

7. Introduce oneself to court. 

Oath of an Advocate-Taken upon admission to the roll of Advocates.

"I............. , swear by the almighty God that iwill at all times uphold the rule of law and administration of

justice, and that without fear or favour, I will well and truly discharge my duties as an Advocate of the High Court of Kenya."


F. GENERAL DUTIES OF A TRIAL ADVOCATE

i. Duty to act ethically at all times 

There is a duty on lawyers to act ethically at all times in order to maintain their integrity and reputation in the eyes of clients, the courts and colleagues. 

Integrity and reputation are two of a lawyer's most priceless assets.

ii. Duty not to expose themselves to litigation 

As officers of the courts, lawyers should always conduct themselves so that they are not needlessly exposed to personal litigation. 

The threat of litigation may play havoc with a lawyer's practice and may also have a damaging effect on his or her reputation. 

While it is true that it may be difficult to sue an advocate for negligently conducting a trial (see also Ronde v Worsley [I 969] 1 AC 191 there may still be liability arising out of initial advice, undertakings or questions of costs .

iii. Duty not to give evidence or make affidavits in cases in which they are appearing 

Advocates should avoid, as far as is possible, putting themselves in any position where they may have to make statements or give evidence in relation to matters which are in dispute in cases where they are appearing. 

The rule would not apply to evidence of a purely formal or non-contentious nature.

iv. Duty to prepare thoroughly for every case 

Thorough preparation may be time-consuming and stressful while it is being done, but it reduces the stress considerably when the trial date arrives. 

An under-prepared lawyer is at a major disadvantage during any trial and the knowledge that all kinds of uncertainties may arise can considerably increase the stress levels experienced by counsel operating under such conditions. 

The fact that a trial lawyer is always thoroughly prepared is likely to enhance a counsel's reputation in the eyes of clients, the courts and colleagues.

v. Duty not to take on too many cases 

There is a duty on trial lawyers not to take on more cases than they will be ‘able to handle. 

A lawyer who takes on too many cases runs the risk of carrying out inadequate preparation, w.ith subsequent prejudice to his or her clients. 

In some instances the lawyer may not even be able to appear in the cases because of double bookings. 

Not only is such conduct unethical, but it will also do great damage to the trial lawyer's reputation.

vi. Duty to be properly dressed 

When appearing in court a trial lawyer should wear clothes that are suitable to be worn under the gown for a court appearance. 

There is nothing more embarrassing for a trial lawyer than to be told by the judicial officer that he or she cannot 'see' counsel.

vii. Duty to introduce oneself to the court 

A trial lawyer appearing before a judge or magistrate for the first time should introduce himself or herself to the presiding officer before their first appearance before the person concerned.

TRIAL ADVOCACY (Continued)

Conflict of Interest, the “cab rank” rule and applications for recusal of judicial officers

This chapter deals with ethical issues facing trial lawyers when they must deal with:

a)      Conflicts of interest;

b)      The “cab rank” rule applicable to the advocates’ profession; and

c)      Applications for the recusal of judicial officers.

1.      Conflict of interest

The following aspects will be dealt with:

a)      The conflict between the trial lawyer’s duty to the court and duty to the client;

b)      The client confessing guilt to the lawyer;

c)      Confession of guilt by client being no bar to defence by trial lawyer;

d)     Confession of guilt imposing strict limitations on the conduct of the case;

e)      Grounds of objection after a confession has been made;

f)       How far a trial lawyer may go in attacking prosecution evidence after a confession of guilt is made; and

g)      Statements not indicating a clear confession.

a)      Conflict between the duty to the court and duty to the client

A major area of conflict of interest faced by trial lawyers is where their role as an officer of the court conflicts with their duty to the client.  Where such a conflict exists the question is: whose interests prevail?  The answer must be that the duty to the court takes precedence, because a trial lawyer may only protect or advance their interests of his or her client to the extent that it is consistent with counsel’s function as an officer of the court.

b)     Client confessing guilt to lawyer

In considering the duty of a lawyer employed to defend an accused person who makes a clear confession to him or her concerning the offence charged, the following should be borne in mind:

                                i.            Every punishable crime is a breach of common or statute law committed by a person of sound mind and understanding.

                              ii.            The issue in a criminal trial is always whether the accused is guilty of the offence charged, never whether he or she is innocent.

                            iii.            The burden of proof rests on the prosecution.

                            iv.            Confession of guilty by client no bar to defence by lawyer

Every person who is charged before the court has a right to the services of counsel in the presentation of his or her defence.  The mere fact that an accused person has confessed to counsel that he or she committed the offence charged is no bar to an advocate appearing in his or her defence.  Such a confession does not release a lawyer from his or her duty to do all that can be done for the client without deliberately misleading the court.  This principle applies to all trial lawyers.

c)      Confession of guilt imposes strict limitations on the conduct of a case

A confession of guilt by a client imposes very strict limitations on the conduct of the defence.  Where a client makes a confession to his or her counsel either before or during criminal proceedings, counsel should explain to the client that he or she may only continue with the case on the following basis.

                                i.            Counsel may not in the proceedings assert that which he or she knows to be untrue, nor may he or she connive at or attempt to substantiate a fraud or untruth.

                              ii.            Counsel may appropriately argue that the evidence offered by the prosecution is insufficient to support a conviction and may take advantage of any legal matter which might relieve the accused of criminal liability.

                            iii.            Counsel may not set up an affirmative case which he or she knows to be inconsistent with the confession.

                            iv.            The client may then decide whether he or she wishes counsel to appear on the above basis or whether he or she wishes to withdraw their instructions.

d)     Grounds of objection after confession of guilt

An advocate to whom a confession of guilt has been made may by way of using principles of legal procedure to relieve the accused of criminal liability, object to such matters as:

                                i.            The competency of the court;

                              ii.            The form of the indictment;

                            iii.            The sufficiency of the evidence; and

                            iv.            The admissibility of any evidence

He or she may however, not suggest that someone else committed the offence charged, or call any evidence which the advocate knows or ought to know to be false having regard to the confession, for example, evidence in support of a false alibi.

Limitations of how a trial lawyer may go in attacking prosecution evidence for the prosecution in his or her cross-examination, or during the closing argument/speech/submissions for the defence.  Such a lawyer is entitled to test the evidence given by each witness, and to argue that the evidence taken as a whole is insufficient to prove that the accused is guilty of the offence charged.  An advocate may not go beyond this by making a case inconsistent with the client’s confession.  For example, by putting a version to witness which he or she knows is false.  These principles should be applied by all trial lawyers.  

e)      Statements not indicating a clear confession

A series of inconsistent statements are made to the advocate by the accused before or during the proceedings or statements may be made by the accused which point almost irresistibly to the conclusion that the defendant is guilty but which do not amount to a clear confession.

The insistence of the client in pleading guilty in the face of compelling evidence to the contrary would not be a reason for declining to act unless it adversely affects the confidence or the advocate-client relationship.  These instances raise the client’s interests are not jeopardized and all trial lawyers should exercise this caution.

2.      The “Cab rank” rule applicable to the advocates’ profession

The “cab rank” rule means that an advocate is obliged to accept a brief unless he or she has some good reasons for refusing to do so.  This applies to the lawyers practising on their own in the profession of advocates.

The following aspects of the “cab rank” rule will be dealt with:

a)      When an advocate is obliged to accept a brief;

b)      When an advocate may not refuse a brief;

c)      The reason for the “cab rank” rule;

d)     Why an advocate should not assume the role of judge;

e)      When an advocate may refuse a brief.

a)      An Advocate obliged to accept brief

Counsel is under an obligation to accept a brief in the courts in which he or she professes to practice, at a proper professional fee, unless there are special circumstances which justify his or her refusal to accept a particular brief. Furthermore, subject to the above, it is the duty of an advocate to whom the privilege of practicing in courts of law is afforded to undertake the defence of an accused person who requires his or her services.  The phrase “cab rank” was coined by Lord MacMillan.  He used the words “on the cab rank” for hire and means that an advocate is obliged to accept a brief unless he or she has some good reason for refusing to do so. The reason for the rule is that every person is entitled to be represented in a court of law.

b)     When counsel may not refuse a brief

An advocate may not refuse a brief because he or she:

                    i.            Does not think much of the client’s chances of success;

                  ii.            Does not think much of the client as a person; or

                iii.            He thinks that the facts of the case are unsavoury/objectionable.

c)      Reason for the “Cab rank” rule

Marshall Hall, the famous English advocate, explained the reason for the cab rank rule as follows:  Barristers (lawyers) are public servants and may be called on just as a doctor may be called on to operate on a man suffering from a loathsome complaint.

Every person who is charged before the court has a right to the services of counsel in the presentation of his or her defence.  Any action which is designed to interfere with the performance of this duty to accept a brief is an interference with the course of justice.

d)     Counsel not to assume the role of a judge

It can be argued that an advocate, who refuses to defend an accused person because he or she feels that the person does not have a good case or is guilty, assumes the role of a judge.  Such an assumption undermines the fundamental and constitutional principles of the Constitution of Kenya, 2010 [Article 50 (2)].  The duty is on the court, not the advocate, to make the decision on the guilt or otherwise of the accused.

e)      When counsel may refuse a brief

Despite the “cab rank” rule, an advocate may refuse a brief where there are special circumstances which justify his or her refusal to accept a particular brief.  Advocates may decline specialist briefs where they consider themselves not competent to accept the brief.  It has been suggested that counsel may refuse a brief for a number of good reasons including but not limited to the following:

                                i.            The client cannot afford the fee;

                              ii.            The advocate may have been consulted by the other side; Central Bank of Kenya v Uhuru Higway Higway Building company

                            iii.            The advocate may have confidential information about the other side;

                            iv.            The advocate may know one of the witnesses involved;

                              v.            The taking of the brief may clash with some office or appointment the advocate holds and his or her duties as an advocate;

                            vi.            The advocate does not have the necessary skill or experience to conduct the case competently on behalf of the client; and

                          vii.            The advocate has too much work and can see in advance that he or she will not be able to carry out the brief.

3.      Recusal of judicial officers

Trial lawyers faced with the prospect of having to ask a judicial officer to recuse him or herself must consider the following:

a)      The need of utmost tact;

b)      How to apply for a recusal based on kinship or previous connection with the case:

c)      How to apply for a recusal based on bias;

d)     The factor to consider when applying for recusal;

e)      The duty to avoid premature assessment of the need for recusal; and

f)       The consequences of the abuse of the right to apply for recusal.

a)      The need for utmost tact

Trial lawyers who find themselves faced with having to request the recusal of a judicial officer should always use the utmost tact when doing so.  Judicial officers are only human, and do not like to be told in open court that they may not be able to make a fair or unbiased decision because of some reason they themselves have not brought to the attention of the interested parties.  They are nevertheless expected to retain their objectivity when considering an application for recusal.

b)     Recusal on kinship or previous connection with decision

Where the application is based on the judicial officer being related to somebody or because of some previous connection with a decision in the same proceedings, the application will not be difficult as the court will usually oblige. It is advisable for the lawyer to point out such a relationship or connection to the judge or magistrate in chambers before raising the issue in open court.

c)      Recusal based on bias

Applications for recusal on grounds of bias can be very difficult, and the trial lawyer must take care to avoid words, which may reflect adversely upon the actual impartiality of the court and which may thus be contemptuous.  Submissions founded on fact and made in moderate language are protected.  However, exaggerated, reckless or incautious language may result in the applicant being held in contempt of court.  Once again it is advisable to advise the bench beforehand about the pending application, in order to give the judicial officer an opportunity to withdraw from the case on his or her own initiative.  Counsel making an application for recusal of a judicial officer should consider the following factors:

                    i.            The repetition of protestations of deep respect will not make the submissions more convincing if the effect of the words is to undermine the honour and dignity of the court.

                  ii.            As a matter of professional courtesy, the judicial officer who is being asked to recuse himself or herself should be informed in advance that such an application will be made. This is usually done informally by asking the judicial officer to receive both counsel in chambers where the person wishing to make the application indicates tactfully the fact and the grounds of the application.  The officer concerned then has time to consider the request and where appropriate, to arrange for someone else to hear the case.

                iii.            Where a lawyer moves for recusal, the other counsel should remain completely neutral because it is essentially a matter between the first lawyer and the bench. The lawyer on the other side should not become involved and should state that he or she will abide by the court’s ruling.

d)     Avoiding premature assessment of need for recusal

Every trial lawyer at some stage may feel that the court has formed an opinion adverse to his or her client. It has been suggested that this can be overcome by doing the following:

                    i.            Lawyers should always preserve the degree of independence and detachment necessary to allow them to remain objective.

                  ii.            Lawyers should not act prematurely when deciding to apply for recusal in case the court’s opinion is merely the expression of transient contemptuous feelings.

                iii.            Lawyers should make sure that they are right before making an application for recusal, and that it is the only reasonably practical step to take.

e)      Consequences of abuse of the right to apply for recusal

If a trial lawyer abuses the request of a judicial officer to recuse himself or herself, and if under the cloak of an application for recusal, the applicant is in truth insulting the court wilfully, summary committal [for contempt of court] may be appropriate.  Advocates should never use their position to undermine the dignity and reputation of the court.

Manners in Court (Court Etiquette)

The correct behaviour at court (court etiquette) is usually determined by long-standing practice. Sometimes rules of etiquette are also contained in the practice manuals produced by various divisions of the High Court and bar associations.  Many rules of etiquette are also contained in the rules of conduct of the legal profession. This chapter deals with:

a)      Dress

b)      Punctuality

c)      Introductions

d)     Modes of address

e)      Behaviour in court

f)       Witnesses

g)      Court terminology

h)      Perceptions of bias; and

i)        Humour in court

a)      Dress

Appropriate court dress for lawyers is dark coloured suits or dresses (black, dark grey or blue). Ties should be understated-loud ties and cartoon characters on ties may be viewed as improper.  Be aware of the smaller details, such as ensuring that shoes are clean and that shirt top collar buttons are fastened.  If a rope is required, ensure it is ungreased, of a suitable size and in good repair.  Male witnesses should dress in collar and tie, and female witnesses should dress smartly and conservatively.

b)     Punctuality

Always ensure that you are at the court at least 30 minutes before the court’s starting time.  Judges and the public expect lawyers to be punctual:  repeated lateness without adequate explanations may be treated as contempt of court.

c)      Introductions

Trial lawyers should always introduce themselves to the judge who will be presiding in their cases.  The term “judge” is used generally to include judges of all courts-Magistrates, High Court, Court of Appeal, Supreme Court.  You only need to introduce yourself once – it is not necessary to reintroduce yourself before each subsequent case you may have before the same judge.  It may, however, be prudent to reintroduce yourself if you have not appeared before the judge for a long time and he or she may not remember you.

d)     How to introduce yourself to a judge

The introduction must be brief and along the following lines:

“Good morning, Judge.  I am Mary Juma, of the firm of Juma and Partners, and I am appearing for the plaintiff in the case of John vs Anne trial which is due to start today.”

“Judge” is the mode of address to a High Court judge in chambers.  In court, counsel should introduce himself as follows e.g.

“My” Lord, I am Mary Juma of the firm of Juma and Partners, and I appear for the plaintif in this case.”

Finally, court etiquette requires you to be accompanied by your opponent when seeing the presiding officer out of court, but this rule does not apply to pre-trial introductions.  In the High Court, the practice is to be fully dressed for court when introducing yourself.

If you have not previously met your opponent, or any of the court officials (like the stenographer, interpreter, court orderly), you should formally introduce yourself to them as well.

e)      Modes of address

i.                    Magistrate’s Courts

In the Magistrate’s courts, presiding officers are addressed as “Your Honour” during court proceedings and by their normal civil titles.  Modes of address such as “Your Worship” and “My Lord” are increasingly being seen as outmoded and unnecessarily pompous, and may, through usage or legislation, be replaced with a uniform mode of address of “Your Honour” in all courts in the future.

ii) High Court, Court of Appeal and Supreme Court

The presiding officer is addressed as “My Lord” in court, and as ‘judge’ out of court or in chambers.  Note, too, that the informal ‘you’ and ‘your’ is replaced by “Your Lordship”- for example. “No, My Lord, I was not aware that Your Lordship has not completed your Lordship’s question.

As the term ‘My Lord’ is addressed to the office of the High Court judge, it is preferable to address both male and female High Court judges in this way.  A female judge may prefer to be addressed as ‘Her Ladyship’ or “My Lady”– establish her preference prior to the commencement of the trial by checking with her registrar.

f)       Behaviour in court

                                i.            Entering and leaving the courtroom

When the judge enters the courtroom, the orderly will shout, “Rise in Court” at which all those present in the courtroom must stand.  When the judge reaches the bench, he or she will stand, bow slightly and then sit down.  This is the cue everyone in the courtroom to sit as well.  When the judge leaves the courtroom, the orderly again announces that everyone should rise – remain standing until the judge is out of the courtroom.

Everyone (lawyers, witnesses and members of the public) entering or leaving the courtroom when it is in session should:  when leaving, briefly pause at the exit door, turn towards the judge bow slightly, and then exit; and when entering, enter the courtroom, pause, bow slightly towards the judge, and then proceed to you place.

Should you wish to deliver a message to one of the trial lawyers while the court is in session, enter the courtroom and quietly sit down next to the lawyer concerned.  Then write out a message, leaving the note with the person concerned, and quietly exit.  It is distracting to the court and bad manners to whisper to one of the trial lawyers whilst proceedings are in progress.  Also limit such interventions to matters that cannot wait until the next adjournment.

ii) Do not wander or walk about in court

The general rule is that a lawyer appearing in a trial should not move away from his position without the permission of the court.  Do not walk around when asking the witness questions or making submissions.  In a criminal case when the defence lawyer wishes to speak to his client (the accused who is standing in the dock), the defence lawyer will have to request the court’s permission: e.g. “My Lord, May I approach the accused for instructions on that point?”

Note that if a longer discussion is required, it is more appropriate to request the court for a short adjournment.  This means that the judge will leave the courtroom, and be recalled by the court orderly once the consultation has been completed.

ii) Always stand when addressing and when being addressed by the judge

When the judge speaks to you as a trial lawyer appearing in the matters before him, you should immediately stand.  When the judge is addressing your opponent, you must sit.  For example, if you are busy cross-examining an opposition witness, and your opponent stands up to object, you must immediately sit.  This indicates to the judge – whose attention has been focused on you – that your opponent is standing, and the judge will then focus on your opponent to hear the basis of his objection.

Only if the judge is addressing both you and your opponent simultaneously (for example, discussing a possible postponement date), should you both be standing at the same time.

You are required to stand when indicating your acceptance of a court ruling:  for example, when the judge completes the delivery of the judgment, both you and your opponent should stand up to indicate your acceptance of the decision by saying: “As the court pleases/most obliged.”

iii) Get the judge’s permission before moving on to the next stage of the trial

After each stage of a trial, or after an intervention by the judge, first get his permission before continuing.

For example: during plea proceedings in a criminal trial after the accused has pleaded not guilty, you will inform the court what the basis of the accused’s defence is.

Magistrate (to accused): how do you plead?

Accused: not guilty, your worship

Defence counsel: Your Honour, I confirm that the accused’s plea is in accordance with my instructions. May I proceed?

[Only continue once the magistrate assents.]

Another example: While you are cross-examining a witness, the magistrate intervenes by asking a question.  If it is a short intervention (one or two questions), you may remain standing until the magistrate gives you an indication to continue:

Magistrate:      [Having completed his questioning of the witness]

Yes, Mr. Juma, you may continue.

Defence counsel:  As the court pleases.  Now, Mr Musa, you said…..

g)      Witnesses

When being questioned during examination-in-chief or cross-examination, witnesses must look at the lawyer putting the question, and then look at the judge when answering the question.  Should the witness not be trained to do so, the judge is likely to become irritated by being treated like an interested observer to a conversation between the lawyer and the witness.

Witnesses yet to be called must wait outside the courtroom (with the exception of certain expert witness who may be required to hear that evidence for the purposes of their later testimony).

h)     Court terminology

Trial lawyers must become familiar with a number of important words and phrases used in court proceedings:

i)        “I submit …” During argument at the close of the trial, or argument on specific issues that arise during the trial (for example, following an objection), trial lawyers make submissions to the court on the correct approach, thus: “My Lord, I submit that the court should find…” Do not use: “I think”, “I aver”; “I consider”; “I am of the opinion”; “I declare”.

ii)   “As the court pleases” This is a stock response phrase indicating the acceptance of decisions by the court, or is used where counsel wishes to indicate that he has completed a submission.  Do not use phrases like “as pleases the court”; “the court pleases”; OK. ‘My Lord”; “Alright” or “I’m finished, ‘My Lord”.

Direct questions from the bench, should however, be answered with a simple “yes” or “no”.e.g.

Judge:  Were the papers served on the defendant personally?

Counsel:  Yes, “My Lord.”

iii)        “If the court will bear with me”   This is a phrase used to request the court to be patient for a little while as you find a misplaced note or authority.  It is meant to indicate a short delay (a minute or two at most). Do not use: “My Lord, just hold on a second” or “Give me a moment to find my note, My Lord”.  If the delay is likely to be longer than a minute or two, rather request a short adjournment.”

iv)        “With respect”/ “With great respect”/ “With the greatest respect”:  A submission preceded by the term “with respect” indicates in advance to the judge that you do not agree with the view stated by him on the issue being discussed.  Should the debate become more heated, and your disagreement with the judge’s position stronger then, you may show your intensified disagreement by prefacing your submission by saying “with great respect, Your Lordship”.  Should you reach a stage in your interaction with the court where you consider the court’s position to be utterly without foundation, you may indicate your disagreement by prefacing your response: “with the greatest respect…” Thus, the greater the professed respect, the less the actual respect for the court’s point of view.

Note, that however strong your disagreement with the court, your submissions must remain courteous and restrained in tone, volume and content, (Remember, you have a need to retain the sympathy of the court).

v)         “I am indebted to the court”, this is the traditional method of saying ‘Thank you’ in court proceedings, and still is in widespread use.  E.g.

Judge:  Ms John, I will give you a short adjournment to take instructions on that point.

Counsel:  Thank you, My Lord.  (Or: I am indebted to the court).

vi)        “My instructions are…”: Often your client may insist you make an application to, or request of the court that is ill-advised or it may be that a version you are instructed to put a witness is manifestly absurd.  In most cases, you will have a duty to comply with your client’s wishes.  If you are challenged (usually in an incredulous tones by the judge, your response that those were your instructions is sufficient to indicate that you are merely carrying out you legal duty, and are not necessarily convinced about the legal or tactical soundness of your submissions.)

vii) “I withdraw the question” or “correction”:  Often counsel will put a question to a witness (either in examination-in-chief or cross-examination), and then decide to change or modify the question.  The correct method to do so is:

Counsel:  Now, Mrs John, when you first saw the bruise makers on…. (stops, then says: Your Lordship, I withdraw the question) –then starts again:  Mrs. John what date was it that you saw the bruise marks on your son for the first time?

A shorthand method of achieving the same effect is to insert the word ‘correction’ after the phrase you want discarded.

Counsel:  Now, Mrs. John, when you first saw the bruise marks on –correction, Your Lordship –Mrs John, what date was it that you saw the bruises on your son for the first time?

viii)      “My learned friend”.  The correct method of referring to your opponent in all courts is “my learned friend” (never sarcastically qualify the ‘learned’ with, for example, ‘my alleged learned friend’ – such behaviour is unprofessional).  It is also preferable to refer to your opponent by name: “Mr. John has submitted that…..” (This may be safer route given the sensitivity of certain members of the Bar at being addressed as ‘my learned friend’ by attorney and prosecutors).

ix)        References to judges not before court:  Refer to other judges as in the formal written references: ‘His Lordship’, Mr. Justice Paul, in his judgment…”  When addressing the court, avoid referring to other judges as “Your brother, Paul” – this reference is only used by judges themselves when referring to other judges.

x)         Postponements; adjournments; remands; standing-down:

The term postponement is used when a case or matter that has not yet commenced is postponed to a later date.

Once a matter has commenced, you have proceedings and proceedings are always adjourned. (Adjournments can be any length of time, from a few minutes to weeks or even months. During court hours, the morning tea-break is referred to as the ‘short’ adjournment, whilst the lunch-break is referred to as the “long adjournment”).

A remand refers to the postponement to another date while the accused is in custody on a criminal charge, as in; “Your Lordship, I ask that the accused be remanded in custody to the 3^rd of June for trial.”

Only a witness can stand down (that is, literally step down from the witness box).  Matters or proceedings cannot stand-down –they can only be postponed or adjourned.

xi)        Perception of bias

‘Justice must not only be done, but also be seen done.’

This adaption of the quoted dictum from the old English case of R v Sussex Justices holds true for all aspects of the trial.  For example, the client you are defending on a criminal charge may not understand your undue familiarity with the prosecutor (who may be an ex-colleague and good friend).  Maintain a professional reserve in your dealings with your court opponents, lest your client interpret your later behaviour during the trial (like a concession properly made) as having been influenced by your friendship with the opponent.  For the same reason , if the judge in your matter is a friend or close acquaintance  , do not refer to him by his first name in the presence of your opponent , nor should you discuss social matters when seeing in chambers in the company of your opponent.

xii)       Humour in court

Trial lawyers should, as a rule, avoid attempts at humour during the trial.  This is especially true for criminal trials, where attempts at humour may be construed as trivializing a serious matter. Leave attempts at humour to the judge.  Sometimes, however, a wry comment may not be inappropriate.

Preparation for Trial

In this chapter we consider:

a)      Trial preparation

b)      Oral advocacy: the ‘PRES’ formula;

c)      The importance of the onus of proof

d)     The sympathy of the court

e)      Preparation wins cases

a)      Trial Preparation

Thorough preparation is probably the single most important factor that will determine whether you win or lose your case.  The crucial steps in preparation, applicable to all tribunals, are:

                    i.            Identifying the issues on the pre-trial documentation;

                  ii.            Preparing a trial plan;

                iii.            The final consultation before trial

                iv.            Identifying the issues on the pre-trial documentation;

In civil cases, thorough preparation requires analysis of the pleadings (preferably by preparing an advice on evidence in order to determine which issues are common cause (agreed on and not disputed by either party-list of agreed issues), and which issues are in dispute.  Analyse in a trial plan the issues in dispute.

In criminal cases, thorough preparation requires an analysis of the charge sheet (or information in High Court trials), in order to determine exactly what your client is facing.  This analysis also entails numbering and listing all the elements of the offence charged, in order to prepare a trial plan.

This table provides a synopsis of the preparation process before trial:

Civil trial	Criminal trial
Pleadings closed: trial notices served and replied to; discovery and interrogations completed; trial date set.	Trial date set; charge sheet/information obtained and analyzed defence
Consult with client or witnesses	Obtain all own client statements, copies of state witnesses’ statements and all other relevant documents to be relied during trial (e.g. fingerprint reports, medical reports, from prosecutor).
Request for further particulars served and reply obtained; pre-trial conference completed.	Consult with complainant/accused and witnesses.
Analyse pleadings (preferably with the Advice on Evidence format)-identify the issues to be proved at trial by either party.	Request for further particulars.
Draw up a trial plan setting out the issues (elements of the claim).	Draw up a trial plan; listing each element of each charge the accused faces.
Consider issues – decide what evidence is available or required to prove each issue – enter on trial plan. Research legal aspects.	Obtain required additional evidence – further consultation with client and/or witnesses.
Decide a theory of the case. [The strategy and tactics you will use: the likely order of witnesses, any ‘fall-back’ positions].	Decide on a theory of the case. [The strategy and tactics you will use; the likely order of witnesses, any ‘fall-back’ positions].
Prepare file for trial (organize sequence, etc.). Comply with court rules regarding indexing and pagination.	Prepare file for trial and draft formal court documents that may be required
Final consultation for trial with client and witnesses	Final consultations for trial with accused and witnesses (or with state witnesses if acting for the state)

iii)        The final consultations before trial

The final consultation before trial should be held as close as possible to the date of the trial – preferable the day before the trial.  The object of the final consultation is to ensure that the witnesses you intend calling are fully prepared for the trial.

Draw a segmented examination-in-chief witnesses’ sheet for each of your witnesses.  This is done by dividing the conversion contained in the witness statement into three or four segments (for example, actions prior to the incident, the incident itself, actions after the incident, explanations for certain actions).

Explain the relevant portions of the case to the witnesses in plain language – the witness must understand for what purpose he or she is being called in the context of the trial as a whole.

Then explain to the witness that you will now lead him exactly as you intend to lead him in court.  Ask the witness to stand behind a chair to stimulate the witness box, and you must also stand when leading him as you will do in court.  It is important that you do not sit and merely talk the witness through his statements, or even worse, read the statement back to the witness without doing simulation. You need to assess the witness on his grasp of his version, as well as assessing his demeanour and mannerisms.

Now lead the witness exactly as you intend to lead him at court, noting on your witness sheet any errors, hesitation, distracting mannerisms, and the use of ambiguous words. This process (with corrections of errors identified) will usually have to be repeated at least three to ten times before you will be satisfied that the witness is ready for trial.

iv         Things to remember when preparing a witness

Insist that the witness uses short, descriptive and meaningful words; for example, ‘walk’ rather than the meaningless ‘proceed’, ‘struck him on the left arm with a stick’ rather than the meaningless ‘assaulted him with a wooden object on his body’ and so forth.

Train the witness in the practical conventions such as the correct way to address the court, whom to look at when testifying, and so forth.

Play the role of the opposition (prosecutor or opposing counsel) to test weaknesses in the witness’s version, and correct potentially damaging responses such as arguing with the opposing lawyer, volunteering unasked information and losing temper.  It is important to confront your witnesses with weak points in their case – the process is known as “defusing landmines”.  Do not succumb to the temptation to ignore potential weaknesses in your witness’s evidence in the hope that they will not be uncovered by the opposing counsel.

Explain the court layout to the witness, and also explain the sequence of events that will follow when the witness is called to testify, including the choice of taking the oath or the affirmation.  If an exhibit or a document is to be handed into the court through the witness, explain the questions you will ask and the response you expect, as part of the exercise.  Also explain the procedure to refresh the witnesses’ memory in the witness box, in case this should become necessary.

Consider habits of speech that may distort meaning.  For example, the witness may have a habit of saying he is ‘pretty sure’ about something, when he actually means that he is completely convinced and has no doubt at all.  During your pre-trial consultations, the witness must be told to use words that reflect his intended meaning – therefore, ‘pretty sure’ may be replaced by ‘absolutely sure’ in the pre-trial consultations, if that is what the witness means.  Note that there is nothing ethical about this correction – ‘absolutely sure’ reflects what the witness wishes to say and not the ambiguous “pretty sure”.

Be especially vigilant about the use of words that affect probability assessments, such as ‘likely’, ‘possible’ ‘probable’.  Warn your witness against being cajoled or bullied into concessions by the use of leading questions by opposing counsel.

Example:

Opposing counsel:  Now Mr. Jones, surely you will agree with me that the number of people present, it is that given the number of people present, it is possible – and I’m not saying that you did make a mistake –just that it is possible you made a mistake?

If, during pre-trial consultation, your witness was adamant that he had not make a mistake, your pre-trial preparation must reinforce his commitment to his version – he must not allow himself to be seduced into seemingly innocuous concessions.

Also inform the witness that he is entitled to explain his answer –he cannot be forced to reply only ‘yes’ or ‘no’ to a question under cross-examination.  Should the cross-examiner insist on this, the witness must be equally insistent that he wishes to qualify his answer.

When you are satisfied that the witness is adequately prepared ask the witness if he or she has any questions on anything that may still be unclear.

Oral Advocacy:  The “PRES” formula

a)      Introduction

All stages of the trial, you will be required to respond to questions from the bench, or you may have to make applications on various issues, or try to persuade the court to accept your submissions on a disputed point. The “PRES” formula is a simple and effective formula that enables you to respond promptly and persuasively to oral questions. It is especially useful in situations where you are required to “think on your feet” – that is, respond quickly and effectively to questions when you do not have time to prepare.

Like any other skill, learning to speak effectively without prior preparation is a skill that can be learnt.  The stereotype of having ‘the gift of the gab’, implying an inborn ability to speak effectively without training, is largely a myth-it is a kin to suggesting that some people are born drivers , that some people learn quicker than others, and may have better language ability, but the essential skills can be learnt by anyone.

b)     The ‘PRES’ formula:  How it works

If you are asked an unexpected question, a message is sent to your brain to retrieve all available information related to the question asked (‘input’). The retrieval process is random, and as information is retrieved, you speak the information retrieved as it is retrieved (‘output’). If there is a retrieval delay between one item of information and the next, the waiting gap is often filled by “delay sound” such as ‘uhmm’, ‘er’, and um…’, or by hand gestures (the hands often frantically waving to speed to retrieval process).

The result is a disjointed, uncoordinated oral of the retrieved from information, with little or no structure or persuasive value.  When you use the ‘PRES’ formula, you impose a structure on your oral response that results in a co-ordinated and persuasive response to the question posed.

The information randomly retrieved from the brain is effectively ‘filtered’ through the formula, and the four-step sequence used when applying the formula usually also results in the elimination of distracting killer sounds and excessively hand gestures.

c)      Applying the “PRES” formula

The formula woks as follows:

P –Point of view

When asked a question, give it a moment’s thought and then state your point of view on the problem.

R – Reasons

Give the reasons why you hold the point of view stated.

E –Evidence and examples

Support your reasons with evidence (for example, authorities who agree with your point of view) and, if necessary use examples to illustrate your reasons.

S – Summarize

Restate your point of view, which is now your conclusion.

When answering a question, it helps to use the actual words of the formula.

P –“My point of view on this statement is ………..”

R – “The reason I say so are….”

E – “Professor X’s research provides evidence in support of …….”

S – “In summary, therefore, I am of the opinion ….”

Using the ‘PRES’ formula to deal with “off the cuff” questions

Example 1:

You are asked the following ‘off the cuff’ question:  Is smoking bad for your health?  Using the ‘PRES’ formula, you would answer along the following lines.

My point of view is that smoking is indeed bad for your health.

The reasons I say so are first, medical scientists worldwide are virtually unanimous that smoking is bad for your health, and secondly, most governments and even cigarette manufacturers themselves accept that smoking is dangerous to your health.

As evidence of the first reason, there is large body of scientific research proving conclusively the link between smoking and fatal diseases such as cancer and heart disease, and as evidence of the second reason, one only has to pick up a cigarette packet to see the prominent health warning printed on it.

In summary, therefore, my point of view is that smoking is indeed bad for your health.

d)     Using the ‘PRES’ formula in court

Once the ‘PRES’ formula has been mastered, it can be adapted to many contexts, for example responding to queries or challenges from the bench during a trial. (Note that the first step – ‘My point of view’ should be replaced with the words ‘my submission’, when addressing the court, but the rest of the formula can be applied unaltered).

Remember that the ‘PRES’ formula must be practiced continually until the sequence of responses becomes second nature to you.

e)      Things to remember about the ‘PRES’ formula

                    i.            The summary (conclusion) is merely a repetition of the ‘point of view’ or ‘submission’ – it serves as a signal to the listener that you have completed your submission.

                  ii.            The evidence and examples must support the reason given-if you give more than one reason, then, remember to link each reason to the evidence and examples that support it.

                iii.            Remember to emphasize the key words when speaking:  “The reason I say so….;as evidence …”and so forth.

                iv.            Pause after each step of the formula to give the listener time to consider your submission (the listener may want to interject with a follow-up question or clarification).  Remember the object is to persuade the listener, not to make a speech.  The ‘PRES’ formula may also be used for pre-prepared submissions, not only for impromptu responses. In this case, however, the first step (“point of view”) is replaced with an introduction in which your approach to the question or problem is outlined.  The remainder of the formula stays the same.

The importance of the onus of proof

The common object underlying each stage of the trial process is to try to ensure that, at the trial, judgment is given in your favour.

When the court is deciding whether judgment should be given in your favour or not, the overall onus of proof is decisive:

In a criminal case, the state will have to show that, on all the evidence, the probabilities favour the state to such an extent that there can be no reasonable doubt of the accused’s guilt – in other words, proof beyond a reasonable doubt.

In a civil case (and all other non-criminal hearings), the plaintiff will have to show that, on all the evidence, the case for the plaintiff is more probable than the case for the defendant – in other words, proof on a balance of probabilities.

In both cases the assessment is of the probabilities – the only difference being that to secure a conviction in criminal cases, the probabilities must overwhelmingly favour the State, whereas to win a civil case, the plaintiff has the less onus of merely showing that, when compared to the defendant’s version, the plaintiff’s version is more probable.

The stringent onus on the state in criminal matters has the consequence that the accused can secure a not-guilty verdict even on an improbable version-provided that the version is not so improbable that it cannot reasonably possibly be true.

An understanding of the level of probability required for the purposes of your case is crucial –it will affect every decision you make at each stage of the trial.

The sympathy of the court

In theory, the judges consider all the evidence calmly and dispassionately eventually coming to a conclusion by the application of sound rules of logic.

However, judges are human, and therefore also subject to being influenced by emotional factors for example, if a witness angers the judge by making a disrespectful comment to the court, the emotion of anger consciously or subconsciously influence the judge’s assessment of the witness’s credibility.  A negative credibility assessment will, in turn, result in the witnesses’ version being rejected, finally resulting in the case the witness was called to support being assessed as improbable.

The behaviour of counsel could have similar effects on the court- for example: badgering and abusive cross-examination may result in the court coming to the witnesses’ assistance by reprimanding counsel.  This in turn, may result in the witness being more positively assessed by the court, as any contradiction or improbabilities in the witness’s evidence may be assessed as being due to the abusive conduct of the lawyer, and not due to the witness’s own deficiencies.

Therefore, in addition to maintaining a continual focus on the onus, counsel should ensure that he/she does not lose the sympathy of the court.

The opening statement and the examination-in-chief

This chapter deals with:

1. The opening statement/speech/remarks
2. Examination-in-chief

1. The opening statement/speech/remarks

The purpose of the opening statement is to provide the court with a framework within which to understand your case. Normally your client’s version is briefly outlined, the essential elements of the case are high-lighted, and the names and number of witnesses are mentioned. Sometimes the essential focus of each witness’s testimony will also be mentioned.

In case where the issues are simple and straightforward you may choose to forego the making of an opening statement altogether.  Is opening statement mandatory (in both civil and criminal cases) in Kenya?

i) Example of an opening statement

“My Lord, the accused Mr. John’s defence in this matter is that he acted in self-defence when he stabbed the deceased.  The evidence so far has shown that the deceased was the aggressor and that the accused was merely responding to an unprovoked attack”.

The defence intends calling two witnesses, the accused, Mr. John, and his father, Mr. Ben, who will testify about the circumstances surrounding the arrest of his son.”

ii) Keep the following points in mind

                                i.            In civil trials, the opportunity to make an opening statement gives the plaintiff a considerable tactical advantage, as the plaintiff’s version is accepted as the prima facie probable version, with the defendant then left with the task of persuading the court that its version is the more probable one.  

                              ii.            Beware of being too specific and detailed in your opening statement, as the contents of the opening statement is evidentiary material that may be used to cross-examine your witness.

                            iii.            The most important aspect of the opening statement is to ensure that the court fully understands every aspect of your case.  The making of an opening statement is therefore imperative in complicated civil case and criminal cases.  In such cases, it is useful to support the opening statement with a diagram, which must be handed up for the guidance of the court. (Remember to also hand a copy to your opponent).

                            iv.            Finally, prepare your opening statement notes by out-lining your opening statement in point form, using the notes as a memory aid when you address the court – do not read a full written statement.

2. Examination-in-chief

The following topics will be covered under this heading:

a)      The main objective of examination-in-chief

b)      The witness sheet

c)      Manner of testifying

d)     Examination-in-chief: the essence

e)      Leading the witness: the core skill

f)       What are ‘leading’ questions?

g)      Controlling the witness

h)      Be aware of the record

i)        The order of calling the witnesses

j)        Leading the witness-in-chief: a summary of steps

k)      Refreshing the memory of witnesses during examination-in-chief

l)        Leading the expert-in-chief

m)    Hostile witnesses

n)      Objections

o)      Mannerisms

a)      The main objective of examination-in-chief

Examination-in-chief is the process of calling witnesses to support the elements of your case.  This can be done through the witnesses’ own testimony, or through items of evidence (objects or documents) handed into court by the witnesses called.

E.g. in a charge of murder, consider the following trial plan:

In order to support the first element of the charge, that is, that the accused acted unlawfully, the state plans to call two eye witnesses

For the second element (intention), the same two witnesses will be relied upon by the state.

The element of causation will be supported by evidence of the pathologist who did the post-mortem examination, as well as the witnesses who witnessed the attack.

The fourth element will obviously be common cause, as the defence is unlikely to dispute that the deceased was a human being.

Assuming that the defence relies on the defence of self-defence, this defence will be supported by the testimony of the accused and another witness.  The essential element of his defence is that the accused, in the circumstances, had no choice but to kill the deceased in self-defence.

b)     The witness sheet

In your pre-trial preparation you will have prepared a witness sheet for each of the witness you intend calling.  (Do not laboriously write out your proposed question and answers, as this is time-consuming and difficult to read whilst standing).  It is suggested that you tick off each point on the sheet as it is asked to ensure nothing is over looked.

c)      Manner of testifying

We have seen that the essential purpose of leading the witness in-chief is to ensure that the witness deals with the issue or elements identified in your trial plan.

It is, however, a futile exercise to lead the witness through a dry, stark rendition of his version – his manner of testifying must also be persuasive.

Case study

Mr. Jackson was charged with culpable homicide, it being alleged that he negligently drove his car into the car of the two deceased (an elderly couple).  The collision occurred on the deceased’s side of the road, and there were no eye witness to the collision.  The collision occurred at the night in rainy weather.

Mr. Jackson was adamant that he had been driving on his correct side of the road when he saw the deceased’s car lights coming straight at him on his side of the road.  As he could not swerve to the left due to a freeway barrier, he swerved to the right to attempt to go around the deceased’s car.  As he swerved to the right, the deceased’s car swerved to the left back onto its correct side of the road again, but was too late and the cars collided, killing the two deceased and seriously injuring Mr. Jackson.  As collision had occurred on the deceased’s side of the road, Mr. Jackson was charged with culpable homicide (presumably on supposed premise that his negligence could be inferred from the point of impact).

In the pre-trial consultation, Mr. Jackson’s first rendition of his version went as follows (in a dull monotone):

Lawyer:  Tell the court what happened

Jackson: It was about 6.30 in the evening. I was coming from watching rugby in Warner Beach with a friend. I drove along Kingsway towards ‘Toti – came to the sharp bend next to the fee way  - saw car lights on my side of the road – turned right to go around – the other car corrected itself – was coming for me again – I tried a sharp left to avoid it–was too late–collision.

This staccato delivery in a dull monotone sounded like Mr. Jackson was merely repeating a rehearsed story–it did not sound at all convincing (even though his version of events was plausible enough).

The crucial aspect of the trial strategy was to persuade the court that Mr. Jackson’s version of how the collision occurred was reasonably possibly true.

In order to enhance the persuasive value of Mr. Jackson’s testimony, he was asked to re-enact exactly what happened in his car immediately prior to the collision.  He was told that the key word that would trigger his enactment would be the word ‘bend’ in the question; “Mr. Jackson, tell the court exactly what happened when you came around the bend?”

This device transformed Mr. Jackson’s dull, monotonous summary of what happened into the following:

“As I turned up into Kingsway, I saw a pair of car lights coming straight for me on my side of the road.  I thought, ‘Oh shit!’ The idiot is going to hit me!’ jerked my steering-wheel to the right and slammed down my foot on the accelerator.  As my car went to the right, the other car also suddenly swerved back onto its correct side of the road.  I shouted out loud ‘stupid bastard!’ and jerked my wheel to the left to try and miss him, but it was too late!”

In the trial, this re-enactment was extremely persuasive and also accorded with the inherent probabilities of the situation.

The key is to remember that your witness’s testimony paints pictures in the mind of the judge – if that picture is a dull summary in black-and-white, it will be much less persuasive than a vivid, dramatic rendition in Technicolor.

d)     The essence of examination-in-chief

The essence of the examination-in-chief is to lead the witness from given point in time, taking him through the sequence of events step-by-step to a later point in time.  Let the witness present his version (‘tell his story’) in chronological sequence without any diversion or detailed explanations- once the judge has heard the outline of the story, you can return to the specific events.  The court, having heard the full version in outline, will then easily place the detailed explanation in the context of the overall version. First tell the whole story-then return to emphasize.

e)      Leading the witness: the core skill

The core skill in leading a witness from a given starting point to a pre-determined end-point is the simple sentence. “What happened next?”

Having outlined the story, repeating this question as your stock phrase, the second stage would be to baby-step the witness through these aspects.

Finally, remember the acronym ‘D.T.P?’ (DATE-TIME-PLACE?-ACTION?), as a device for starting your examination-in-chief of a witness.

Example:

Counsel:  Mr. Jones, on Sunday 1 April 1992 (date), at 2 o’clock in the afternoon (time), where were you (place) and what were you doing (action)?

Jones: I was walking in Sleep Street going towards Down Street in Umlazi.

Counsel: What happened next?

Jones:  [Continue until basic story is completed – then return to deal with certain aspects in details]:

Counsel:  Mr. Jones, I want to take you back in your evidence to the point where you were confronted by the deceased.  Exactly how far from you did he stop?

Jones:  About two to three paces.

Counsel:  What did he do immediately after he stopped?

Jones:  He stood there and shouted at me…

f)       What are leading questions?

Leading questions are not permitted in examination-in-chief.  However, do not confuse the process of leading the witness with (that is, taking the witness through his testimony using short, open-ended questions), with the concept of ‘leading’ questions – that is a question that is phrased in such a way that the desired answer is contained or implied in the question itself.

There has been much academic debate and little unanimity about an acceptable definition of a leading question.  The best approach, we suggest, is to define a leading question with reference to the reason why its use is not permitted in examination-in-chief.  A leading question may thus be defined as any question that undermines or diminishes the weight the court may give to the answer elicited from the witness by such a question.

Whether a question is objectionable on the basis of being ‘leading’ will therefore depend on entirely the context –the court wants to hear the witness’s testimony in his or her own words:  It does not want to hear the testimony of the lawyer, using the witness merely as a sounding board.

Consider the following examples:

Example 1:

Counsel:  Now, Mr. Jones, is it correct that you pulled out your knife and stabbed the deceased in self defence?

Jones:  Yes.

(Here it is the lawyer testifying, and Jones is merely affirming what the lawyer has said.  The court cannot give much weight to the single word ‘yes’ – how does it assess the probability of Jones’s reaction in the circumstances, and Jones’s demeanour on the single word uttered?  The question will not be allowed as the court can give a little or no weight to Jones’s answer).

Example 2:

Counsel: Mr. Jones, when the deceased came towards you, what happened next?

Jones:  He stopped about two paces in front of me, and I stepped back two paces

Counsel:  what happened next?

Counsel:  He put his hand into his pocket and pulled out a knife.

Counsel: What happened next?

Jones:  I immediately pulled out my own knife out from my belt and stabbed him before he could stab me.

(Here the questions are non-directive, giving Jones an unfettered choice on what to reply–therefore the potential weight of the answers are not compromised, and the questions are not ‘leading’).

It follows that it is not necessarily the form of the question that determines whether it is objectionable or not, but the context – that is, will the potential weight the court may attach to the answer elicited be compromised?

Example 3:

Counsel:  You are Mr Jones, you are 17 years old and in Shiners High School?

Jones: That is correct.

(This question is designed to elicit background information unrelated to the stabbing incident, and does not undermine the potential weight the court will attach to the answer – the question is merely cast in this form to speed up the trial).

Note, however, that if the Jones’s age had been in dispute –the State, for example, alleging that Jones is actually 20 years old, and that he has changed his age in order to be a juvenile offender, the question would be objectionable.  If Jones’s age is in dispute, an open-ended form will have to be used.

Counsel: Mr. Jones, how old are you?

Furthermore, casting the question in a form permitting only a limited number of options may be accorded the reply.

Example 4:

Counsel: Now Mr. Jones, when you stabbed the deceased, did you stab him on the head or in the chest?

(This question is objectionable because the witness is directed to choose only one of two options – a free choice may have elicited a reply that he stabbed the deceased in the stomach, or arm, or on any one of numerous other places on the body.  The correct question would be as follows:

Counsel:  Mr. Jones, where exactly on the deceased’s body did you stab him?

Jones:  On his right arm.

The extreme form of a leading question is not a question at all, but a statement. It is made to sound like a question by attaching a ‘tail’ to the statement which merely seeks the witness’s affirmation that he agrees with the statement.

Counsel: Mr. Jones, you stabbed the deceased on the right arm – is that correct?

Jones:  Yes.

g)      Controlling the witness

Despite the fact that court proceedings are tape-recorded, most judges prefer to note the evidence down in detail.  This requires the trial lawyer leading the witness to be aware of the judge’s writing speed (watching the judicial pen), and to delay the putting off a question to the witness until the answer to the previous question has been written down by the judge.  A useful control technique is to train to glance at your right hand while answering your questions-in-chief.

When your hand is raised palm-upwards (directly at about waist height), the witness must complete the statement he is busy with and then stop.

When you lower your hand (palm facing down), he must continue with his answer (until you raise your hands again).

This way you ensure that the delivery of the witness’s testimony keeps pace with the judge’s writing speed.  The inability to properly control your witness is bound to irritate the court, with the result that your witness may become unsettled and nervous.  Remember that both the lawyer and the witness must project their voices and speak in a clear, audible manner.  Also speak slowly and pause between submissions –the court also needs time to consider the submissions made.  If an interpreter is used, remember to allow for the interpretation to be completed.

h)     Be aware of the record

All court proceedings are tape-recorded or handwritten.  For purposes of appeal, the taped record is transcribed. This means that what is heard on the tape is what is typed, and this typed version forms the court transcript.  Keep this in mind when leading the witness.  For example, if your witness’s reply to a question is inaudible, this will be reflected on the record as follows:

Counsel: What happened when you handed the letter to the landlord?

Witness: (inaudible).

Counsel:  What happened next?

If your witness says nothing at all in response to a question, you must insist on an audible reply, or else the transcript may merely reveal two consecutive questions being asked.  Note that when cross-examining a witness, you may not want to insist on a reply, but you should comment on a witness’s inability to answer the question, or else the effect of your devastating piece of cross-examination may be lost.

Counsel:  You did not report the theft at all on Sunday, did you? [no reply from the witness]

Counsel:  I see you are unable or unwilling to answer the question.

Witnesses’ interruptions of your questions and outbursts of angers should also be described for the record, as they will merely be recorded as ‘intervention’ or ‘inaudible’ on the record.

Finally, physical demonstrations in court should be accurately described for the record.

Example:

Counsel:  How did you stab the deceased?

Jones:  Like this [demonstrates]

Counsel:  ‘My Lord, the accused demonstrated the stabbing action as follows:

He gripped the knife (exhibit 1) in his right hand with the blade facing downwards.

[Pause]

He lifted the knife up until the blade was above his head, parallel to the ground, and

[pause]

He demonstrated a swift angled downwards stabbing motion.

i)        The order of calling witnesses

Your trial strategy (overall plan) will determine the order in which you call your witnesses.  In some cases, you may want to call your best witness first, because the other witnesses merely corroborate his version; in others you may call your best witness last in order to leave a strong, positive impression in the mind of the court.

In criminal cases, the accused must be called first, or else a negative inference may be drawn by the court.

If there can be no prejudice to the state by calling other witnesses before the accused, no adverse inference may be drawn.

j)       Leading the witness in-chief: A summary of steps

Step 1:  D-T-P?-A? (Date-time-place?-action?)

Step 2:  Take the witness through his version chronologically, repeating the phrase: “what happened next?” as your stock phrase.

Step 3:  After completing the outline of the version (telling the basic story), go back to the specific points in the version and cover these aspects in great detail (baby-stepping).

Step 4:  Deal specifically with any weaknesses in the witness’s version. (‘Defuse landmines’).

Finally, at the conclusion of the witness’s evidence, indicate to the court that you have finished.

“That is the evidence My Lord,” or “I have no further questions, Your Lordship.”

Never conclude your evidence with an open-ended invitation to the witness to add to his testimony, such as:

“Is there anything else you would wish to tell the court?”  This is a recipe for disaster, as you never know the witness will come up with.

g)      Refreshing the memory of the witness during examination-in-chief

If your witness cannot remember a portion of his evidence when testifying, you may ask him if he wishes to refresh his memory from his statement (or note book or other document).  The refreshing of your witness’s memory may be crucial to your case, as without the forgotten facts the case might be lost.

k)     Leading expert witnesses-in-chief

Before leading your expert witness on his findings, you have to first establish the witness’s credential as an expert.  Only once this has been done, may the court have regard to his opinion. His credential may be established by virtue of his academic and professional qualifications and previous experience, or by previous experience.

Example:

In a murder trial, Dr. Joseph, a pathologist, was called to testify on the cause of the deceased’s death.  In order to establish his credentials as an expert, he should be led as follows:

Prosecutor:  Please state your full names for the record.

Dr. Joseph:  I am Dr. Joseph Peter.

Prosecutor:  What academic and professional qualifications do you hold, Dr. Joseph?

Dr. Joseph:  I have MB ChB degree of the University of Natal, obtained in 1972, and the Master in Medicine Degree from the University of Cape Town, obtained in 1979.  I also completed a post graduate Diploma in Forensic Pathology at the University of Edinburgh in 1986.  I have been registered with the health professional council of South Africa (previously called the South African Medical and Dental council) as a specialist forensic pathologist since August, 1987.

Prosecutor:  Please tell us what experience you have seen as a specialist pathologist.

Dr. Joseph:  I have practised as a special pathologist for 13 years: from 1987 to 1995 in the employ of the state as State Pathologist based in Durban, and since 1995 to the Present in private practice in Durban.  During this time I have examined more than…..[evidence continues]

j)       Hostile witnesses

It may happen that a witness you have consulted with for trial suddenly tries to undermine your client’s case once he or she is testifying in the witness box.  Should this happen, the trial lawyer has to decide to what extent the witness’ evidence will hurt his client’s case if it is left uncontested.  The options are:

v  To merely stop evading the witness once the antipathy towards your case becomes apparent; or

v  To prove the witness’s inconsistent prior statement against him; or

v  To apply for the witness to be declared a hostile witness and if the application is successful, to cross-examine the witness.

If a prior inconsistent statement was made, putting the statement to the witness may be used as part of the evidence to prove hostility. Note, however, that the mere proving of a prior inconsistent statement does not convert the witness into a hostile witness.

Counsel should inform the court that he is going to ask questions with a view to possibly discredit his witness.  This should preferably be done after he has completed the body of his examination-in-chief in order to enable the defence to cross-examine the witness on the merits of his evidence and the circumstances surrounding the making of the statement.

The witness should be asked if he has previously made a statement to the police about the same matter.

Sufficient details should be put to the witness about the date, time and place of the making of the statement and his signature on the statement to inform him about what statement is being referred to.

If the witness admits making the statement to the police then he should be asked if the statement was reduced in writing in his presence and if so, whether he thereafter read it (or if it was read back to him, as the case may be).

If the witness still answers in the affirmative, then he should be shown the statement and asked if it is his signature on the statement.

Once he has admitted that, the statement should be read out to him and he should be asked if those were the word which he used.

If the witness admits saying the words, the statement may be handed in as an exhibit without it having to be proved by evidence although it might well be unnecessary to hand in the statement since the admission of the witness would be on record as to the contents of the statement.  Where he has made more than one previous statements, whether consistent or inconsistent with his evidence, it is desirable that all such statements should be produced.  The witness should then be asked which of his two statements (more) is the truth.

The witness must be given the opportunity to clear up the discrepancies.  He might have a good explanation for inconsistence, misunderstanding or mistranslation; the recorder might not have had translation, words could even have been put in his mouth by a perhaps overzealous policeman or he could be trying to protect someone.  It’s unfair to assume that such a witness is lying without giving him a chance to explain.

k)     Objections

The general rule is only to formally object if it is really necessary.  If your opponent asks leading questions during his examination – in –chief you should warn him a few times in a stage whisper before standing up to object.

The procedure is as follows:

1)      As soon as you hear the item of evidence you wish to object to merely stand up. (Do not shout out: “Objection!”)

2)      In response, your opponent should, as a matter of court etiquette then immediately sit down (the judge’s attention will then be on you).

3)       State the basis of your objection: “My Lord, I object to the admission of the statements on the legal basis that it is inadmissible hearsay.  The reason I say so is….” (Use the ‘PRES’ formula).

4)      Your opponent will then be given the opportunity to reply to your submission.

5)      The court may then give you a chance to briefly reply.

6)      The court will then announce its decision whether to sustain or dismiss the objection.

l)        Mannerisms

Whilst leading your witness, try to eliminate mannerisms that may irritate or distract the court, such as:

v  Clicking you pen;

v  Smacking your lips;

v  Jingling your keys;

v  Putting a hand in your pocket while leading the witness: or

v  Repeating your witness’s answer immediately after it is given.

Cross-examination

This chapter deals with the following issues:

a)The essential objective of cross- examination;

b)      A closer look at this objective;

c)      Cross- examination: statements, not questions:

d)     Basic cross-examination technique;

e)      Cross-examination court craft;

f)       Selected tactical considerations;

g)      Cross-examination ethics;

h)      Re-examination;

a)      The objective of cross-examination

The objective of cross-examination is to ensure that your client’s version of events is preferred to the version of the witness you are cross-examining.

b)     A closer look at this objective

Traditionally, commentators who have discussed the aims and objectives of cross-examination have on the effect your cross-examination should have on the witness you are cross-examining (destroy the witness’s version: undermine the witness’s credibility and so forth).  The correct approach in our view is that the success of your cross-examination of a witness will be determined by the effect it has on your own client’s version:

If you are acting for the accused in a criminal case, your aim is to ensure that at the conclusion of your cross-examination of the state witness, your client’s version remains reasonably possibly true, i.e. ensuring that, at the conclusion of the cross-examination, your client’s (accused’s) version remains reasonably possibly true.  In civil cases, your client’s version must be the more probable version at the conclusion of the cross-examination.   If you are defending an accused in a criminal case, you ‘win’ your case if your client is acquitted.  Your client will be acquitted if the court is satisfied that his version is reasonably possibly true:   To show that his version is reasonably possibly true, the accused must create a reasonable doubt in the mind of the court about his guilt.  The defence focus when cross-examining state witnesses is therefore the creation of doubt.  The simplest way to create doubt is to obtain concessions from state witnesses:  

For example:

Defence counsel:  Sgt Jones, I’m sure you will agree with me that it is not easy to identify a person by moonlight?

Sgt Jones:  It’s not easy.

Defence counsel:  And you only saw the person who jumped over the wall for a fleeting moment?

Sgt Jones:  I suppose so.

Here Sgt Jones’ concessions create some doubt about the reality of the identification of the accused- a number of similar concessions from other state witnesses is likely to cumulatively amount to a ‘reasonable doubt’ when the evidence is assessed as a whole at the end of the case)

In conclusion, therefore, provided your cross-examination of the state witness is sufficient to ensure that your client’s version remains reasonably possibly true, the aim of your cross-examination has been achieved.

In a civil case, the essential aim of cross-examination will be achieved if your client’s version of events is shown to be more probable than that of the witness you are cross-examining:

v  When you appear for a client in a civil case (plaintiff or defendant).  You ‘win’ your case if the court gives judgment in your favour.

v  The court will give judgment in your favour if it is satisfied that your client’s version is more probable than his opponent’s version;

v  Therefore, when cross-examining in a civil case, you will have to do more than merely get concessions that create a doubt: you will have to go further and get concessions that tilt the probabilities in your client’s favour;

v  This onus may require you to go beyond extracting concessions and, for example, show that the witness being cross-examined cannot be believed at all.

v  In contrast to a criminal case, the cross-examination of the opposing witness in a civil case must leave your own client’s version sufficiently strong for the court to reach a finding on a balance of probabilities in your client’s favour.

c)      Cross –examination: make statements, do not ask questions.

The core skills in cross-examination are to train yourself not to ask open ended questions. Your standard technique when cross-examining is to put statements supporting your client’s version to the opposition witness, followed by a short request to confirm the statement.

For example:

Prosecutor.  When the deceased stood in front of you, you could see he was drunk – correct?

(Note: when the deceased stood in front of you, you could see he was drunk (statement): - correct?

(Request to confirm).

Witness: Yes

Prosecutor:  To the left of where you stood was just open field- right?

Witness: Yes.

The advantage of putting statements instead of asking questions is that you restrict witnesses to merely confirming or denying assertions put to them.  This way, you keep control of the witnesses, and give them very little scope to give detailed responses.

Traditionally, the statement plus confirmation ‘tail’ has been called an extreme type of ‘leading’ question, but this terminology is not helpful as there is no consensus among writers about the correct definition of leading question.

Although the statement plus ‘tail’ is your main cross-examination device, open-ended questions may still be used during cross-examination for tactical purposes.  However, only use an open-ended question if you are sure that the witness’s answer cannot hurt your case.

Provided the witness continues to agree with your statements in support of your client’s version, there is no problem.  Should the witness disagree with the statement put to him, you will then have to use other methods to persuade the court to reject his version and accept yours by showing for example:

·         That the witness is mistaken about the contested point; or

·         That the witness is untruthful about the contested point; or

·         That the inherent probabilities (that is, the way we expect things to happen based on common sense and experience) concerning the contested point, favour your case.

d)     Basic cross-examination technique.

In this section the basic steps that need to be mastered to ensure the competent and effective cross-examination of a witness will be discussed.

Step 1

The cross-examination sheet:  write down exactly what the witness says in examination- in-chief, and note items for cross-examination.

Every word spoken by the witness during the examination-in-chief should be written down.  Do not summarise or paraphrase   the evidence, as a single word or phrase may prove to be extremely significant.

Example:

(The witness, Peter Smith, was called to corroborate the evidence of the defendant.  He appeared to be an ideal witness, but the plaintiff’s counsel strongly suspected that he had not been present in the tavern when the plaintiff had been assaulted, and has merely memorized a fabricated version.)

The portion of his evidence –in-chief was as follows:

Counsel for the defendant:  Mr. Smith, where in the tavern were you seated when the fighting started?

Witness:  At the bar.

Counsel for the defendant:   What did you see?

Witness:          The plaintiff was sitting with two women at a table.  They were chatting and drinking beers.  Then a man I did not know bumped their table, causing the beer to spill onto the plaintiff.  The plaintiff got very angry and picked up – sorry I left a piece out- before the plaintiff got angry, the two women …….. (continued).

If you took a verbatim note of the evidence, your indication may have been to ignore the seemingly innocuous and meaningless phrase, ‘sorry, I left a piece out.’  However, on closer examination, this phrase is a fruitful starting point in cross-examination, as it seems to support the theory that Smith had merely memorized his version. (One would have expected him to rather say, ‘sorry, I forgot something.’  Using the words, ‘leaving a piece out, suggests that the witness memorized a sequence of events).

Also note down things like hesitation, silences and mannerisms.  Because the judge will also be taking a detailed note of the evidence, you should not have a problem keeping up with the witness.  You need not write out the questions put to the witness- just the witness’s answers need to be noted.

We suggest that the evidence be noted on a cross-examination sheet.

Using the cross-examination sheet

This is a sheet of A4 size paper, divided in to two.  In the main body of the page, the evidence –in-chief – only the answers; not the questions – is written down as spoken.  Any aspects of the evidence you may wish to challenge or use in cross-examination will then be noted opposite the relevant paragraph in the right-hand column (marked ‘XX’).  You may wish to cross-reference the note in this column with a number linking it to the evidence-in-chief.

The bottom quarter of the page is for any additional notes that may have been prompted by the evidence-in-chief, for example; additional items of evidence needed; aspects of the case-law to

When your opponent has finished leading the witness in-chief, he will indicate to the court that there are no further questions.  This is due for the start of your cross-examination which leads to the next step:

Step 2:  Ask yourself:  Has the witness hurt my case?

By the time you get to this stage, you will already know in what respects the witness has hurt your case, as you would have noted and numbered this damaging aspect of the testimony on your cross examination sheets.

In assessing the potential damage of then evidence given, keep the overall onus of proof in mind.  For example a prosecution witness testifies as follows about his purported identification of the accused.  

“The man I saw looks quite a lot like the accused-similar build and facial features-I am not very sure, but I think it is the accused.

Reasonable doubt about whether the man the witness saw was, in fact the accused is inherent in this evidence and there would therefore be no need to cross examine the witness (he has not hurt your case).'

The same evidence in a civil trial however may require the cross examination of the witness as the evidence given arguably raises a probability that the man seen was the defendant.

If your answer to the question, “Has the witness hurt may case, is yes, then list (highlight on the cross examination sheet), the portions of the evidence that hurt your case.  After this has been done cross-examine the witness on each of the point in your list to try to nullify or reduce the harmful effect of the damaging evidence.  You may, for example, try to get the witness to concede that he may have been mistaken or if this fails try to show that the witness is untruthful on that point.

If your answer to the question, has the witness hurt my case is no, then you must ask yourself the next question.

Step 3:  Ask yourself:  Can the witness help my case?

For example, can you elicit testimony from this witness that will strengthen the probabilities in your client’s favour?  Perhaps aspect of the witness’s testimony, if expanded upon, could corroborate your client’s version, or you could obtain detailed evidence on a ‘specific aspect to use as cross-examination ammunition against an opposition witness still to testify.

If you answer to the question is yes, obtain the helpful information, but be careful to ensure that you don’t inadvertently elicit damaging evidence.  If in doubt about the potential pitfalls of proceeding to cross-examine, rather decline to cross-examine.  If the witness clearly does not have the potential to help your case, decline to cross examine by saying:  "I have no questions for this witness. Your Lordship.

e)      Cross-examination courtcraft.

In this section, the following principles are considered:

v  Listen to the witness:  the L.A.E.R formula;

v  Frame your question to elicit only one item of information at a time;

v  Do not formulate sloppy or imprecise questions;

v  The cross-examiners’s demeanour – keep a ‘poker’ face.

v  Do not be enticed into arguing with the witness.

v  Watch the judge’s pen.

i)        Listen to the witness: the L.A.E.R formula.

When the witness is answering your question in cross-examination, you must not only hear what is being said, but carefully observe the witness (is the witness continually looking at his counsel for assistance?) and listen to the content of the answer.

Often, cross-examiners are so focused on the next question they want to put, that they do not fully appreciate the significance of the answer given. The L.A.E.R formula assists you to develop listening and analytical skills when cross –examining.

It works as follows:

Listen:  Listen carefully to the answer given by the witness you are cross examining, ensuring that you fully understand the answer.

Analyse:  Consider the choice of words, any hesitation, and information volunteered that was not requested.

Evaluate:  Decide what the effect the answer given has on your case-does it have the possibility to hurt or help your case?

Respond:  In light of these steps, you must decide in what direction your cross-examination of the witness will continue, or whether to end the cross-examination at that point.

With practice, these few steps are considered instantaneously – an automatic test applied to each answer given by the witness.

ii)         Frame your question to elicit only one item of information at a time

Counsel should beware of multiple questions.

Example:

Counsel:  Is it not correct that you stood at the door for five minutes before entering and stabbing the complainant?

Witness:  Yes

(Does this mean the witness has agreed with all the four allegations contained in the question?)

The correct approach would be:

Counsel:  When you got to the house, you stood at the back door-right?

Witness:  Yes.

Counsel:  And you stood there for  about five minutes-correct?

Witness:  Yes.

Counsel:  You then entered the house through the back door-correct?

Witness:  Yes.

Counsel:  You then stabbed the complainant?

Witness:  No, I did not stab her-she ran into my knife.

iii)        Do not formulate sloppy or imprecise questions

You must ensure that the question posed to the witness permits only the answer or range of answers you intend.

Iv The cross - examiner’s demeanour – keep a ‘poker’ face.

If the witness reply to your question in cross-examination is potentially damaging to your case, or unexpected, discipline yourself to show no outward signs that the answer has hurt you. Use the L.A.ER. formula to assess the best way to proceed.

Also bear in mind that while your client is being cross examined the judge may draw inferences from your facial expressions and body language – don’t inadvertently discredit your own witness by wincing and vigorously shaking your head, when your witness makes errors under cross-examination by your opponent.

v)         Do not be enticed into arguing with the witness.

Do not be distracted from the cross-examination objectives you have set yourself.  Inexperienced trial lawyers often fall into the trap of arguing with the witness during cross-examination.  This trap is usually sprung through the witness responding to the cross-examiner’s question with a question of his own.  This usually happens when the witness is having difficulty answering the cross-examiners questions.

vi) Watch the judge’s pen.

As is the case in the examination-in-chief, pace your questions in cross-examination to keep up with the judges writing speed.  This rule may be relaxed if your cross-examination requires a quick follow up question.

Vii)      Never ask why?

The question ‘why?’ is open –ended and nearly always results in a reply damaging to the cross-examiner’s case.  The question may be used tactically in some circumstances – but before it is employed, ensure that any answer that may be elicited cannot hurt your case.

viii)      Put your version.

You are obliged to put your client’s version to the witness if the evidence of the witness contradicts, modifies otherwise impacts on your client’s version.

In putting your client’s version, you need only to put those aspects of the version that have been affected by the witness’s evidence- do jot laboriously repeat your client’s entire version to each and every witness called by your opponent.

The failure to dispute portions of testimony that conflicts with that of your client could result in the rejection of your client’s version in that point, and the adoption of the version of the witness you omitted to challenge.

An effective rule of thumb is to put your client’s version after first highlighting your client’s version as being more probable than the version of the witness being cross-examined, for example, you may show the conflict between the two versions do not amount to a contradiction, but merely to be a normally human discrepancy.

Example

If you can, try to avoid using the words:  “I put it to you that…”

Rather use:  “My client will testify that…”or I suggest to you…”

ix)                One question too many

When you strike oil, stop digging. Do not let idle curiosity, or a desire rub salt into the wound, encourage you to continue questioning the witness when the concession you sought has already been made.

A famous traditional illustration of this rule is an assault case where it defendant was sued for biting off the plaintiff’s tongue.  The cross examination of the only eye-witness to the incident went like this.

Defence counsel:         Who do you say bit off the plaintiff’s tongue?

Eye-witness:                The defendant did

Defence counsel:         Did you actually see the defendant bite off the plaintiffs tongue?

Eye-witness:                No, Sir, I did not.

(At this point, defence counsel should have ended his cross-examination and have sat done, but he did not).

Defence counsel:         (With a self-satisfied smile)

                                    Well, then, how can you then say it was the defendant who bit off

                                    the plaintiff’s tongue?

Eye- witness;               I saw him spit it out

x)                  Close all escape routes

In cross-examination, the defence counsel should close all available escape routes in order to tighten the loose ends evident in his client’s case.

xi)                Repetition

The most common forms of repetition used during cross-examination are:

(a)                Repeating the answers for the witness you are cross-examining;

(b)               Repeating the question put to the witness during cross-examination;

(c)                Asking the witness under cross-examination to repeat a portion of his evidence in –chief; and

(d)               Repeating the witness’s answers to questions put to him in cross-examination.

This is an irritating mannerism that must be avoided. The cross-examination usually goes something like this:

Counsel:                Mr. John, when you ran from the scene of the stabbing you threw your knife in the bushes – right?

John:                      Yes, I was afraid he people chasing me would find it in my possession.

Counsel:                (Repeating the answer, “You were afraid the people chasing you would find it in your possession.  But you did not run straight to the police, did you?

John:                      No, I ran to my parental home.

Counsel:                (In reflective monotone): You ran to your parental home. What time did you get to your parental home?

(End of extract)

Sometimes, however, counsel may repeat the witness’s answer as a tactical ploy, for

instance, to indicator disbelief at a far-fetched answer.

Counsel:          What did you do when the intruder burst in and started shooting at everyone in the room?

Witness:          I peeped over the top of the table to get a good look at his face.

Counsel:          You peeped over the top of the table to get a good look at his face?!!

(The answer is repeated here by counsel in an incredulous tone to indicate to the witness-and the court – his utter disbelief in the witness’s version on this point.  This may result in the witness modifying or trying to defend his answer).

Asking a witness to repeat a portion of his examination-in-chief.  When the cross-examiner suspects that a witness has fabricated an aspect of his version, it is a legitimate tactic to ask the witness to repeat the portion of evidence-in-chief covering that aspect.  This repetition may result in the witness giving a version so different from the one given in his examination in-chief that an inference of fabrication is justified. The manner in which this may be done is as follows:

Counsel:                      Mr. Jones, just remind us again what exactly did the plaintiff say to you when he signed the amended contract?

xii)              Using collateral evidence in cross-examination.

‘Collateral’ (or subordinate’) evidence is which, on the face of it does not appear to be relevant, but its relevance is apparent once the applicable portion of cross-examination has been completed.

xiii)            Indicating relevance.

Do not be intimated by the court into abandoning your line of questioning, as the court may not be in a position to appreciate your objective at this stage: politely but firmly insist that the relevance will become apparent.

xiv)            Do not interrupt the witness.

Let the witness complete the answer to your question without interruption, even if he is being deliberately evasive or excessively verbose.  Rather let the court intervene to reprimand the witness.  A sure way to lose the sympathy of the court is to continually interrupt the witness.  The judge may think you are afraid of the answer, and are therefore unfairly preventing the truth from coming out.  Your interruptions may also be viewed as an attempt to badger or intimidate the witness.

Although interrupting is an accepted cross-examination technique in some jurisdictions, it is best avoided.  In any event, the more the witness talk, the more cross-examination ammunition you are given.

xv)              Cross-examination ethics

In this section, consider the following:

a)      Attacking the character of witnesses

A trial lawyer may attack the character of witnesses during cross-examination up to the expected levels in order to aid in fair trial.

b)     Confusing or misleading cross-examination

You are entitled to objet if the cross-examination of your witness is either deliberately or unintentionally confusing or misleading.  An example would be where a series of questions results in the cross-examiner assuming a fact which is not yet in evidence.

Example

Counsel:    When you arrived at the house, you went and stood at the back door, did you not?

Witness:    That’s right.

Counsel:    You then entered the house through the back door - correct?

Witness:    I did not enter the house.

Counsel:    And after you entered the house, you stabbed the complaint- right/

(Counsel here assumes that the witness had entered the house, despite the fact that the witness has specifically denied doing so. This could confuse or mislead the witness)

a.      Abusive cross-examination.

The court has a duty to protect witnesses from abusive cross-examination. Apart from it being unethical, abusive cross-examination also carries the danger of the loss of the sympathy for your case.

b.      Subtle distortions

It is unethical to paraphrase evidence to give it a shade of meaning more supportive of your case.

c.       Contradictions and normal discrepancies.

If ten individuals are asked to estimate the length of a  room 15 metres long, the chances are that the estimated will range from 10 to 20 metres. These differences in estimated length are normal discrepancies – it is artificial to draw adverse inferences as a result. Conversely, if all 10n individuals estimated the distance to be say, 91/2 metres, only reasonable inference to be drawn is that all 10 people colluded to agree on a distance. Thus, be careful to  distinguish between genuine contradictions, and normal human discrepancies.

Re-examination

After a witness has been cross- examined, the trial lawyer who led the witness in-chief has the right to re-examine the witness. There is no obligation to re-examine; the lawyer can choose not to re-examine.

In this section, the following issues are considered:

a)      The purpose of re-examination

b)      Re-examination procedure

c)      Things to remember.

a)      The purpose of re-examination.

The purpose of re-examination is to give the lawyer who called the witness an opportunity to lead the witness again in order to:

v  Clarify evidence that has been left in a confused state after cross-examination or;

v  Place in context evidence that may have left the court with a misleading impression.

s

Example:

(Let us assume that in his cross-examination the defence counsel stopped after getting the concession from the eye-witness that he did not actually see the defendant bite off the plaintiff’s tongue)

Defence counsel:         Who do you say bit off the plaintiff tongue?

Eye witness:                The defendant did.

Defence Counsel:        Did you actually see the defendant bite off the plaintiff’s tongue?

Eye Witness:               No, sir, I did not.

Defence Counsel:        Thank you.  I have no further questions for you.

In re-examination, the misleading impression left by this cross-examination may be rectified as follows:

Re-examination by plaintiff’s counsel

Plaintiff’s counsel:  You told the court that the defendant bit off the plaintiff’s tongue-how do you know this?

Witness:  I know this because I saw the defendant spit the tongue out.

b)     Re-examination procedure

While your witness is being cross-examined, make notes about items of evidence that are left confused or incomplete during cross-examiantion.

When you are about to re-examine, it is accepted convention that you may bring the witness being re-examined to the relevant point in the evidence by way of repetition or a leading question.  However, the question itself must be open-ended.

c)      Things to remember when re-examining

Re-examination is confined to issues that were covered in cross-examination.  Should you wish to ask new questions beyond this, you have to seek court’s for leave.

Choose your words carefully so that the witness knows exactly what the re-examination intends to focus.  Do not ask questions in re-examination unless you are sure the witness knows the answer.

Closing Argument/ Speech/ Submissions

This chapter deals with:

a)      The main aim of closing argument.

b)      The nature of closing argument

c)      Closing argument procedure

d)     Preparing your closing argument

e)      Example of a closing argument

f)       Presentation of a closing argument.

a)      The aim of closing argument.

The closing argument (also called ‘argument’ or the “closing address’or speech) is the stage of the trial where each of the opposing trial lawyers attempts to persuade the court to decide in his favour.

b)     The nature of closing argument

It may be fairly easy to persuade the courts if the judge happens to agree with your submissions on the evaluation of the evidence. Your closing argument will then amount to little more than a closing speech (or address).  The judge will have no need to challenge your submissions (since he agrees with them).

Sometimes the judge may be convinced your case has been proven even before closing argument begun-in such cases, the judge will invite your opponent to begin if the usual convention is for you to view, you may very well be informed that you need not address the court at all.

In most cases, however, there will be issues on which the submissions accord with the views of the court and others where they do not.  In the latter case, you will not have the luxury of merely delivering a speech, but will have to debate the contested views with the judge in order to persuade the court to accept your views (that is, argue the case with then judge).

c)      Closing argument procedure

The general rule is that the lawyer acting for the party on whom the onus rests argues first.  The opposing lawyer then argues, after which the lawyer who started has the right to reply.  In theory, the right to reply is limited to questions of law, but in practice the courts invariably allow the starting lawyer to reply on factual issues as well.  The argument is limited to the evidence led at trial- new evidence or information not covered during the trial cannot be introduced at this stage.

d)     Preparing your closing argument

In essence, during argument the trial lawyer will try to persuade the court to adopt his submissions in its judgment on the merits.  It is therefore useful to use the structure of the judgment to prepare your argument.  Start your preparation by taking a number of blank pages and write the following headings (one per page) at the top of each page:

1.      The issues

List the issues that the court will have to decide to determine who wins the case as follows:

v  The issue

v  The onus on the issue

v  The legal test applicable to the issue.

2.      Agreed facts :

List the facts that are not in dispute or common cause, due to:

v  Prior arrangements between the parties;

v  Formal admissions made before or during the trial; or

v  Evidence of both parties on the aspect being identical.

3.      Summary of relevant evidence.

Summarise (only a few lines per witness) the evidence that the court has to consider to decide the case, in the following categories:

v  Witnesses called for the state or plaintiff

v  Witnesses called for defence.

v  Witnesses called by the court.

v  Evidence handed in the consent between the two parties.

v  Circumstantial evidence

v  Other categories of evidence (for example, inspections in loco)

4.      Evaluation of the summarised evidence.

The evidence summarised in (3) above is now evaluated - submission must be made on how much weight to attach to each individual item of evidence.  Your submissions on the testimony or each witness must be made in respect of:

v  Contradictions with other witnesses

v  Corroboration of other witnesses or exaggeration.

v  The inherent probabilities when considering the witnesses’ version;

v  The demeanour of the witness

v  The weight to be attached to objects and documents handed in by the witness

Based on these criteria, conclude your submissions with your overall assessment of the witness: (truthful; untruthful, mistaken etc) and your assessments of the other evidence (reliable or unreliable’).

5.      Conclusions of fact.

After evaluating all the evidence, the court will consider its findings on individual witnesses and the other evidence, and then decide on the version of either the plaintiff (or the state in criminal cases), or that of the defendant (or the accused in criminal cases), or finding on the facts that does not fully accord with the versions in preference to those of your opponent’s witnesses.

After stating the facts it has been found to be proved, the next step will be the application of the applicable legal test, and the overall onus of proof to these facts.

6.      Applying the legal test to the conclusions of facts and the overall onus of proof

At this stage, the court decides whether the facts it has found to be proved are sufficient to justify a finding in favour of either the plaintiff or the defendant in civil cases, or the state or the accused in criminal cases.  It is at this stage that the legal test on each issue is applied to the facts found to have been proved, and an assessment of the overall probabilities is made to decide whether the required onus of proof has been achieved.  Again, your submissions must highlight the aspects that indicate that the probabilities favour your case.

QUALITIES OF A GOOD TRIAL LAWYER

1. INTRODUCTION:
A good trial lawyer must possess certain qualities to be able to honour his/her duties to his client, Court, opposing counsel, witnesses, and more importantly to the administration of justice.

2. QUALITIES OF A GOOD TRIAL LAWYER:

a) Clarity and order of language: Palmer and Mc Quoid have observed that “communication is the lifeblood of the trial lawyer’s profession. Moreover, Majalia Mjomba has also observed that “communication is a dynamic process that involves two or more individuals exchanging messages in order to share meaning, create understanding and develop relationship.” As such, in communicating, an advocate should adopt the following skills:

i. put questions clearly and logically to a witness;

ii. address the Court with clarity and in a logical sequence;

iii. remember ambiguity and obscurity is irritating;

iv. remember it is a client’s case at stake;

v. keep questions and sentences short;

vi. speak slowly.

b) Honesty and integrity: An advocate’s greatest asset is his integrity and reputation, if s/he loses that, s/he will not only cause irreparable damage to him/herself but to the entire legal profession. This is on account of the fact that an advocate is an officer of the Court and the duty s/he owes to the client. An advocate should therefore disclose relevant decisions and should not mislead the Court. The key areas to demonstrate honesty and integrity are in regard to:

i. identity of self and of a client;

ii. matters pertaining to client (e.g., why a client is not in Court);

iii. documentation that is part of the Court process;

iv. the Court records

v. the law.

vi. exposing before proper tribunals without fear and favour unprofessional and dishonest conduct of another lawyer and should accept without hesitation a retainer against any lawyer who is alleged to have wronged the client.

Consequences of dishonesty are that an advocate may:

i. lose goodwill of the Court and other parties in the Court process;

ii. face disciplinary proceedings leading to being struck off the roll.

In addition, an advocate should not betray the client’s trust by misappropriating client’s money or assets. This is expressly provided for in Section 80 of the Advocates Act, Cap 16.

c) Judgment: This is an ability of an advocate to make appropriate tactical decisions when conducting a case. In other words, a good trial advocate should be able to think logically and make reasonable judgments and assumptions based on information presented. Accordingly, an advocate should:

i. do so in consultation with the client;

ii. keep client well briefed on the strategy;

iii. give a client sufficient information to enable him/her make an informed decision;

iv. be able to think on one’s feet. This may mean withdrawing an Application or an Appeal.

d) Objectivity: This is the ability to consider the case dispassionately and objectively. This can considered in two ways:

i. with a divided bar: It is easier with a divided bar since advocates have no personal ties with the client, they are able to give both client and Court an objective opinion unclouded by emotional attachment.

ii. with an undivided bar: an advocate should stand back from the case to analyse its progress as objectively as possible. Ethical requirements dictate that an advocate is not to become personally, as distinguished from professionally associated with the client’s interest.

e) Courage: A good lawyer must be a courageous actor. S/he must have courage to stand up for the client’s interest in spite of the hostility from the public or even the Court. It may arise especially during applications for recusal. Courage to conceal personal sensitivities in order not to display emotion to the Court or to the witnesses, for e.g., where an adverse testimony is made against the client.

f) Alertness: A good trial lawyer is always on the alert to:

i. what a witness is saying;

ii. body language of a witness;

iii. the Bench - If they are writing, bored, or irritated;

iv. behaviour of the opposing counsel;

v. documents and exhibits in the case;

vi. other happenings in the Court.

g) Tenacity: This means that an advocate should keep pursuing the suit no matter the opposition from witnesses, bench, or opponents. The general rule is that an advocate should:

i. never embark on course of action unless s/he is ready to justify it;

ii. be prepared to defend the action until all proper arguments in favour of it have been exhausted;

iii. not be tenacious about a bad case as that will work against the client’s interests;

iv. not support a case that cannot be supported.

h) Sincerity: An advocate must believe a client’s case/cause to avoid placing his/her service at the disposal of his/her opponent and should have a desire to have a client succeed just as s/he succeeds. The conscious or subconscious indications to the Court that an advocate does not believe in a client’s case will lead to Court also not believing in it. Sincerity must runs through the trial.

i) Humanity: An advocate should easily and politely communicate with people from all walks of life i.e., advantaged v. disadvantaged, or rich v. poor, or urban v. rural people. The parties in a trial are not robots. They have likes, dislikes, prejudices, preconceptions, etc. Unlike Judges who are trained to disregard prejudices, witnesses are not. As such, an advocate should take into account all these characters. The attributes of humanity are a) understanding, and b) courtesy. The benefits of humanity include getting:

i. answers an advocate needs from a witness;

ii. audience of the Court;

iii. accommodation of parties to the suit.

j) Hard work: Good trial lawyers are industrious and they work very hard by for instance, clawing the facts to know what happened in the case, and finding out what is the story behind the story. The areas of hard work include:


i. finding out the detail: that may include dates, names of parties, exhibit numbers, other pertinent aspects of the case;

ii. organising the facts i.e., witness statements, exhibits;

iii. researching on the appropriate and applicable law;

iv. anticipating the opponent’s side;

v. visiting the relevant scene;

vi. obtaining forensic and other expert reports;

vii. making a study into an area of specialty;

viii. organising the documentation, including numbering, lettering, highlighting.

k) Professionalism: Lawyers should at all times maintain the honour and dignity of the profession both in public as well as private life. This is by abstaining from behaviors that tends to discredit their profession. (Refer to R.2, the International Code of Ethics). S/he should as well observe proper dress code required by the profession. Moreover, advocates are required to render legal assistance with scrupulous care and diligence including when assigned as counsel for an indigent person (Refer to R.10, the International Code of Ethics). The Advocates Act, Cap 16 provides that:

i. the Chief Justice must be satisfied regarding the qualifications, service and moral fitness of one petitioning to be admitted to the roll of Advocates; (Refer to S.15(3), the Advocates Act, Cap 16.)

ii. the one to be appointed as Senior Counsel must be of irreproachable professional conduct and be one who has rendered exemplary service to the legal and public service in Kenya; (Refer to S.17(1), the Advocates Act, Cap 16.)

iii. no advocate shall employ or remunerate any person who is disqualified from practising as an advocate by reason of the fact that his name has been struck off the Roll or is suspended from practising as an advocate. (Refer to S.41, the Advocates Act, Cap 16. )

Article 75 of the Constitution of Kenya, 2010 also provides that a State Officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids any conflict between personal interests and public or official duties and in a manner that demeans the office the officer holds.

l) Courtesy: The ability to appreciate the diverse opinions and/or being sensitive to different behaviours. This implies that a trial lawyer should show utmost courtesy towards the opposing lawyer, witness, client, Judge, etc., and be cool even when the trial gets heated. Besides, s/he should know how to address the Court in an appropriate manner.

m) Good in time management: A trial lawyer needs to be a good time manager. This imputes punctuality in performance of his/her duties. S/he has to balance time allocated to paperwork and courtroom appearances and between phone calls and face time with clients and colleagues. Besides, an advocate has a duty to appear in Court in time. It is considered rude to keep the Court waiting.

n) Excellent interpersonal skills: The trial lawyer should have excellent interpersonal skills especially when relating to his/her colleagues given the fact that they are the people s/he interacts with often. Besides, s/he should also be able to read tones and situations so as to respond accordingly in order to develop a trusting relationship with everyone s/he works with.

o) Excellent research and writing skills: Preparing a legal strategy generally requires an extensive amount of research. Anyone involved in the legal profession should have excellent research skills to be able to find and comprehend pertinent information. Moreover, a good advocate must have excellent writing skills helpful in preparing compelling arguments, briefs, motions, pleadings and other legal documents. Besides, a lawyer is a minister in the temple of justice and is bound to ensure that the law evolves and develop in a way that it can justly deal with crises in the society. S/he has a duty to assists the public to advance new and undefined spheres to meet emerging challenges and where necessary, propose and champion new legislations to deal with modern challenges and past injustices.

p) Comprehension skills: A trial lawyer should have strong reading comprehension skills to easily understand complex information encountered in legal research and documents.

q) Public speaking skills / eloquence: It is said, “words are the advocate’s tools of trade.” A good advocate should therefore have excellent public speaking skills especially when addressing a courtroom. An advocate’s speech and voice should not only be pleasing to the Bench, but also to the congregation. Command of the language, audibility and proper construction of sentences and use of grammar are essential tools of an advocate. The words spoken with clarity, order and ardour must always be at his finger-tips to attract the confidence of the Court that the advocate is conversant with the subject of his submission.

r) Humility: A trial lawyers need to be humble especially when dealing with members of the Bench. S/he must not confront them.

s) Creativity: This involves doing something new and unique to solve a problem or demonstrate a point. It also involves a thoughtful, advanced planning, role plays, using objects, use of metaphors and analogies. A good trial advocate is creative and able to think of reasonable solutions when problems and unique situations arise.

t) Fairness: An advocate should be fair in his her dealings with clients, opposing counsels and judicial officers.

u) Zealous/passionate: A good advocate should act as the client’s mouthpiece. S/he should as far as possible and within the bounds of the law zealously and fearlessly defend the interests of his clients by, for instance ensuring that the outcome of the case should be favourable to his/her client. S/he should thus not engage in conduct that jeopardizes a client’s interests. Besides, an advocate should be passionate about their causes. Passion and a strong belief in the cause or issue one is advocating for helps in overcoming obstacles.

v) Civility: A trial advocate, although required to be tenacious when questioning witnesses, ought to be humane and polite while avoiding degrading a witness through his/her utterances and questioning techniques.

w) Charisma: A good advocate should be charismatic as such helps in winning influence, gaining trust and rewards with acceptance.

x) Self control: This is an important attribute that an advocate requires especially when cross-examining a witness. It requires a lawyer to control his/her feelings (particularly, temper), tone and avoid being confrontational no matter the demeanor of a witness. This helps in avoiding uttering careless statements that may be defamatory or degrading.

y) Confidence: A good trial lawyer should be able to tackle complex matters, appear before any forum s/he has never appeared before and speak about complex issues s/he has never handled before without fear or being intimated. There must be no timidity about his performance. Advocacy should not be marred by petty and exacerbating faults. Even where the advocate realises that he has made a detrimental submission to his client’s case, he should maintain his composure and not freak out.

z) Up-to-date: A good trial advocate stays on top of developments in the legal field by, for instance, pursuing continuing training. In fact, the Advocates Act, Cap 16 require lawyers to earn continuing education credits annually.(Refer to S.81(1)(h), the Advocates Act, Cap 16.)


ETHICAL DUTIES OF A TRIAL ADVOCATE: A QUINTESSENCE FOR EFFECTIVE ADMINISTRATION OF JUSTICE IN KENYA

1. INTRODUCTION:

In any civilised nation, advocates, apart from being regarded as intellectuals amongst the elites of the country and social activists amongst the downtrodden, they are professionals considered as Court officials playing a significant role in the administration of justice. As such, most jurisdictions, including Kenya, have clearly laid down rules and regulations that govern the advocates’ professional conduct. This generally arises out of the duty that they owe not only to the Court and client, but also to their fellow opponents (advocates) and witnesses. A thorough analysis of the said duties is as hereunder.

2. CONCEPT AND MEANING OF THE TERMS ‘ETHICAL, DUTY AND TRIAL ADVOCATE’:

The adjective term ‘ethical’ is derived from the word ‘ethics’ which refers to the quality of good moral. ‘Duty’ according to Black’s Law Dictionary, refers a legal obligation that is owed or due to another and that needs to be satisfied.”(Refer to The Black’s Law Dictionary 543, 8th edn., 2004. Patterson L. R., A Preliminary Rationalization of the Law of Legal Ethics 57, N. C. L., Rev. 519 (1979). When the two words are combined, in Court opinion, they refer to a moral obligation a party has towards another.

‘Trial advocacy’ another important term riddled with paths of past exploration, is a term that generally has no precise meaning. To better understand it, it is significant to first define the term ‘advocate.’ The Black's Law Dictionary defines the term ‘advocate’ to mean one who assists, defends or pleads for another; or otherwise, one who renders legal advice and aid and pleads the cause of another before a Court or Tribunal. (Refer to The Black's Law Dictionary 51, 5th edn., 1979.)

The term ‘trial’ according to Merriam Webster Dictionary is the formal examination before a competent Tribunal of the matter in issue in a civil or criminal cause in order to determine such issue.

Various persons have tried defining the term ‘trial advocacy’ from different angles. According to formalists like Terence F. McCarthy, he believes that trial advocacy which is limited to formal teaching of courtroom forensics generally entails the mechanism by which advocates become effective in trial proceedings (Refer to Terence F. McCarthy, The History of the Teaching of Trial Advocacy, Keynote Speech, Stetson University College of Law’s Dinner, 16th November, 2007.) Jeffrey S. Wolfe, on his part, believes that ‘trial advocacy’ covers not only the skills demanded of a lawyer in a courtroom but also the means of acquiring those skills, since ultimately those means contribute to the effectiveness of the advocate in the Court (Refer to Jeffrey Wolfe, Exploring Trial Advocacy: Tradition, Education, and Litigation, Tulsa Law Review, Vol.16, Issue 2, 1980).

In the past two decades, there have been several criticisms raised especially on the role of trial advocates not only in Kenya but also in other jurisdictions. For instance, it has been observed that it is ethically wrong for a trial advocate to defend a client’s wrongful or immoral conduct (Refer to David Hoffman, Fifty Resolutions in Regard to Professional Deportment, (1836)). Besides, nascent trial advocates are not only unethical but also incompetent and ineffective in trial advocacy. This can generally be attributed to, as Tauro observes, “hodge-podge of learning experiences lacking overall logic, form, or direction.”8 Thus, to mitigate the issues raised, law school curriculums now provide practical skills through clinical education, judicial attachments, Court simulations, moot courts, etc. Besides, law firms are now conducting trial advocacy trainings not only to their young attorneys but also as refresher to the seniors. Moreover, the Law Society of Kenya demands that all advocates undertake continuous legal education in order to acquaint themselves with the new trends.

3. TRIAL ADVOCATE’S ETHICAL DUTIES TO THE COURT:

An advocate's duty to the Court is a fundamental obligation that defines his/her role within the adversarial system. It should be noted that the trial advocate’s duty to Court takes priority over all other duties that a trial advocate has including the duty to the client, opponents, State and to the witness (Refer to S.55, the Advocate‘s Act, Cap 16. ) This therefore means that in the event any duty to the aforementioned persons or authorities tries to supersede the duty to Court, it will be appropriate for the trial advocate to act for the good of the Court as s/he is an officer of the Court.(See S.55, the Advocate‘s Act, Cap 16. )

An advocate's duty to the Court also relates to the profession's independence, or what has been described as the high degree of autonomy that advocates experience from external controls other than those imposed by self-regulation.

The following are therefore the duties of an advocate to the Court:

3.1 DUTY TO ADOPT TACTICS THAT ARE LEGAL, HONEST AND RESPECTFUL:

An advocate must adopt tactics that are considered legal, honest and respectful. This duty is often referred to as the duty of candour. An advocate should not offer before the Court false evidence, regardless of the client's wishes. S/he should withdraw from representing a client who insists on tendering such evidence. It is important for an advocate to try to persuade a client to rectify the situation and/or promptly disclose the deception to the Court if no action is taken by the client.

3.2 DUTY NOT TO MISLEAD THE COURT:

It is the duty of an advocate to assist the Court in carrying out the administration of justice. In other words, advocates are primarily responsible for ensuring that they do not employ strategies that will mislead the Court. Misleading the Court encompasses misleading the Court on legal points and evidentiary issues as well as making tactical strategies that are likely to affect the case.

a) Misleading the Court on evidentiary issues: This simply means that an advocate cannot knowingly:

·       · rely on or provide false evidence to the Court; or

·       · mis-represent or mis-state facts in an argument; or

·       · compel a witness to give false evidence; or

• · maintain false pretence. For instance, where counsel knows that the Court is operating under a mistaken assumption and actively maintains the false pretence, the lawyer is guilty of misleading the Court i.e., where a judge is referring to a witness by an improper title i.e., referring to a defendant as a Chief Inspector when s/he had been demoted to the rank of station sergeant without being corrected by an advocate. (See See Meek v. Fleming, [1961] 2 Q.B. 366. )
• There have been instances where advocates have been sued for misleading the Court. For instance, an advocate was sued for:
• · preparing and delivering a letter containing information he not only knew to be false but also would likely to be relied upon by others in civil proceedings.
• · attempting to induce a witness to sign a statement containing a different version of events related to the facts at issue rather than what actually transpired.

In both cases, the Law Society of Kenya was forced to impose sanctions for misleading the Court.

In Law Society of Upper Canada v. Punnett (1997), an advocate was sued for misleading Halton region on what an order in council had said. His defense was that there was a clerical error which was made by an employee at the Halton region. It was found to be in fact false as the error was based on his misinterpretations.13 Similarly, in De Ian Bwosiemo Magara & Another v. Future Estates Limited,14 an advocate’s case was

struck out because he did not have a valid practicing certificate at the time of filing a case in the Court of law.

The Solicitors’ Codes of Conduct, 2011 categorically provides that an advocate cannot attempt to deceive or knowingly or recklessly mislead the Court.15

b) Misleading the Court on Legal Issues: Corresponding to duty not to knowingly mislead the Court on evidentiary issues, an advocate cannot misstate the law. Advocates are under a positive duty to make full disclosure of all the binding authorities relevant to a case. This means that all such authorities on point must be brought before the Court, whether they support or undermine the position being argued by that party, even if opposing counsel has not cited such authority.

3.3 DUTY TO AVOID TRIAL PUBLICITY (SUB JUDICE):

The goal of the legal system is that each party shall have his or her case, criminal or civil, adjudicated before an impartial Court/Tribunal. The rules regarding trial publicity are designed to enhance the likelihood of that occurrence and ensure that a Court/Tribunal and its proceedings are as impartial and without prejudice as possible. An advocate should therefore not make an extrajudicial statement through public communication, which will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

3.4 DUTY TO UPHOLD THE LAW:

Advocates are an integral part of the administration of justice in a legal system. They must at all times act within the law and more importantly, uphold the law when engaged in their profession. Though an advocate has the duty to represent his client zealously to the best of his ability, s/he should not forget the fact that his/her loyalty is foremost to the Court and to the law.

3.5 DUTY TO DISCLOSE ALL RELEVANT INFORMATION:

Trial advocates must ensure that the Court is well informed of all existing relevant informations, decisions and legislative provisions in his/her possession. S/he should not allow a Court to be misled by remaining silent about a matter within his or her knowledge which a reasonable person would realize and if made known to the Court would affect its proceedings, decision or judgment.

Moreover, where one of the parties makes an incorrect reference to a case or omits a case or Statute, or in case of existence of any procedural irregularities, the other party should inform the Court of the same whether it is in his or her favor or not. An advocate should not preserve such matters only to reveal them during appeals. 

3.6 DUTY TO ACT WITH INTEGRITY AND PROFESSIONALISM:

Section 55 of the Advocates Act, Cap 16 provides that an advocate is an officer of the Court and as such, must act with integrity and professionalism while maintaining his/her overarching responsibility to ensure civil conduct. Thus, an advocate is expected to conduct himself in a manner befitting the status of an officer of the Court. Under this duty, a number of areas are covered i.e.,

1.      a) Duty to avoid sharp practice: Trial Advocates should avoid sharp practices, which includes taking advantage or acting without fair warning upon slips, irregularities, or mistakes on the part of other advocates. They should also refrain from influencing the decisions or actions of Courts or Tribunals by anything other than open persuasion. This rule applies both inside and outside the courtroom. Advocates may not make allegations of dishonesty unless they have evidence to support such allegations and should not interfere with the administration of justice.

2.      b) Duty to respect the Court: Trial advocates must respect the Court. Respect comes in all forms – preparedness and timeliness are one aspect of consideration. Being familiar with the facts and law applicable to a case, and knowing a client's position is the most fundamental display of respect for the Court process. S/he should not abuse the Court process nor unreasonably raise or defend an action for which there is no legal justification. In particular, when an advocate knows there is no merit to the client's claim but pursues the claim for some other reason, this is an abuse of the Court process.

3.7 SUBMISSION OF EVIDENCE TO THE COURT:

A trial advocate should ensure that the evidence presented to the Court is “necessary, relevant, admissible and probative.” In other words, the evidence should facilitate the decision-maker in achieving the outcome. The role of counsel is thus to sift and distil the evidence to make focussed decision-making by the judge easier and efficient. The temptation, for e.g., in commercial cases to file Court books containing many volumes is unlikely to help speedy decision-making. It is not part of the role of counsel to create evidence which does not exist.

3.8 DUTY NOT TO GIVE PERSONAL OPINIONS:

As a general rule/grand norm, an advocate cannot assert a personal opinion on facts of the law. This is only allowed if invited by the Court to do so, or when appearing before a Tribunal, or if it is an advocate’s duty to do so. Thus, s/he should always speak in his/her role as an advocate and not in his/her personal capacity.

3.9 PERSONAL RESPONSIBILITY FOR CONDUCT:

Trial advocates are personally responsible for the conduct and presentation of their cases within and without the Court. They are required to exercise personal judgment on the substance and purpose of statements made and questions asked.

As officers of the Court, trial advocates must act competently, honestly, diligently and with complete candour when dealing with the Court. Their conduct therefore needs to be exemplary.

Sometimes waiting for a Court appearance may be frustrating for especially junior counsels. It is important to remain patient and courteous when waiting for a matter to be called.

It is considered inappropriate for practitioners to talk loudly inside and/or outside the courtroom or, move around the courtroom in a disruptive manner.

Mobile telephones must at all times be switched off and solicitors should not play games or read newspapers while the proceedings are going on in the Court.

The Court must be silent and still when:

• · the Court is being opened or closed,
• · a person is taking an oath or affirmation,
• · a person is being sentenced or a judgment is being delivered, or a prisoner is being arraigned.

When entering and leaving the courtroom, it is essential that all legal practitioners acknowledge the presence of a Judge or Magistrate with a bow, and then to sit in a manner that minimizes disruption.

3.10 DUTY OF COURTESY:

The English Bar Rules states in part that lawyers must at all times be courteous to the Court and to all those whom they have professional dealings with. Lawyers are officers of the Court and as such, must act with integrity and professionalism while maintaining their overarching responsibility to ensure justice. Trial advocates are therefore personally responsible for their conduct and presentation of their cases not only in the Court but also out of the Court.

An advocate should at all times therefore uphold the dignity/reputation of the Court through respectful conduct and courteous speech. S/he should never adopt a confrontational view with the Court even when there is reason to believe that the judicial officer’s position is at odds with the law. In this regard, in the case of Ajay Kumar Pandey, Advocate, In Re.,(1998) 7 SCC 248., an advocate was charged of criminal contempt of Court for the use of intemperate language and casting unwarranted aspersions on various judicial officers and attributing motives to them while discharging their judicial functions. Upon considering the facts of the case, the Court held that:

The subordinate judiciary forms the very backbone of administration of justice. This Court would come down a heavy hand for preventing the judges of the subordinate judiciary or the High Court from being subjected to scurrilous and indecent attacks, which scandalise … or lower … the authority of any Court as also all such actions which interfere … with the due course of any judicial proceedings or obstruct

… the administration of justice in any other manner. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is necessary for the Courts to enable them to discharge their judicial functions without fear.

Similarly, in Radha Mohan Lal v. Rajasthan High Court((2003) 3 SCC 427. ) and Chetak Construction Ltd. v. Om Prakash & Ors.,((1998) 4 SCC 577. ) the Supreme Court of India deprecated the practice of making allegations against the Judges and observed that:

Indeed, no lawyer or litigant can be permitted to browbeat the Court or malign the Presiding Officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to terrorize or intimidate Judges with a view to secure orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it.

Thus, even though an advocate is entitled to freedom of expression, s/he equally owes countervailing duty to maintain dignity, decorum and order in the Court proceedings or judicial processes See, Lalit Mohan Das v. Advocate General, Orissa & Another, AIR 1957 SC 250). Any adverse opinion about the judiciary should only be expressed in a detached manner and respectful language. The liberty of free expression cannot therefore be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary (See, D. C. Saxena v. The Hon'ble Chief Justice of India, (1996) 5 SCC 216.)

An advocate should also be courteous, civil and act in good faith with all persons with whom s/he deals with during the course of practice. The civil conduct also extends to those in the legal profession and those individuals who are integral to the legal process.

An advocate should always stand when addressing a Judge or Magistrate, or when a Judge or Magistrate is addressing them. Moreover, it is good to always speak from the bar table and not from anywhere else in the body of the Court. The bar table must never be left unoccupied during the hearing of a Court list. An advocate must therefore remain at the bar table until s/he is given leave of the Court to vacate the bar table, or when the next matter on the list is called, or where the Court adjourns.

It is equally important for a junior counsel to always show respect to a senior counsel. Where there are several counsels at the bar table appearing for a matter, a senior counsel should be left to occupy the bar table with the most senior occupying the chair at the centre.

It is also significant that an advocate should refrain from speaking when a Judge, or Magistrate, or prosecution, or someone else is speaking.

It is also important for a trial advocate to be courteous to the Court, Court staff and the prosecution. This will go a long way in making working life easier for an advocate especially when s/he inevitably delays in making an appearance in the Court.

The Solicitors Code of Conduct, 2011 provides that solicitors and authorised bodies should not take unfair advantage of those they deal with(See Chapter 11, the Solicitors Code of Conduct, 2011).The outcomes include conduct in relation to undertakings and that all undertakings are performed within an agreed timescale or within a reasonable amount of time. Some of the conduct requirements in this area apply in all circumstances in which professional titles are used to advance personal interests.

3.11 DUTY NOT TO WASTE COURT’S TIME:

Trial advocate must take all reasonable and practical steps to avoid wasting the Court’s time. It is important that advocates should:

· report to the Court before the commencement of the list. In other words, advocates must be present in Court at the appointed time. Being late is generally considered egregious and neglectful of a lawyer's obligation as it causes delay and disruption to the Court process. It can also be considered as rude to keep the Court waiting;

· not keep a Court waiting whilst engaged in other matters. Where it is unavoidable, it is important for the trial advocate to inform the Court clerk in advance. In case the Court is meant to wait for an appearance, it is vital for an advocate to first apologize to the Court for the delay and provide reasons for the delay before proceeding with the suit before the Court;

· not seek to arrange a postponement of a matter to suit his or her convenience unless the client has agreed and an advocate on the other side has also been informed as to the reason of such postponement. Adjournments of cases can cause disruption to Court sittings, inconvenience to witnesses and also, as a result of the passage of time, cause problems for a witness's memory. It is important to note that unnecessary adjournments drain Court resources;

•  appear before the Court when required. It’s a common phenomenon for an advocate failing to appear before the Court simply because the client has instructed him/her not to do so. It is a lawyer’s duty to appear before the Court irrespective of such instructions if s/he is counsel on record; 
• not file unnecessary proceedings and raise unnecessary technicalities even if prompted to do so by a client;
•  thoroughly prepare for a case. The level of preparation should not be based on the amount of legal fees being paid by a client. Every case should be treated with the seriousness it deserves regardless of the type of case or the fees being paid.
• not make frivolous and vexatious objections;

3.12 DUTY TO EXPEDITE PROCEEDINGS:

Advocates should aid the Court in speedy decision-making by not subjecting a Judge to excessive material or more documents than strictly necessary which do not facilitate decision-making or such resolution. In Ashmore v. Corporation of Lloyd’s,((1992) 1 WLR 446) Lord Templeman observed that:

the parties and particularly their legal advisers in any litigation are under a duty to cooperate with the Court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of the counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the Judge will be capable of fashioning a winner. In nearly all cases the correct procedure works perfectly well. But there has been a tendency in some cases for legal advisers, pressed by their clients, to make every point conceivable and inconceivable without judgment or discrimination.

The opinion of the Court in Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd., is quite important((1999) 1 SCC 37). The Court in this case held that:

It is the solemn duty of every Court to proceed with judicial function during Court hours and no Court should yield to pressure tactics or boycott calls or any kind of browbeating. The Bench as well as the Bar has to avoid unwarranted situations or trivial issues that hamper the cause of justice and are in the interest of none.

The Mahabir Prasad Singh case therefore raises an important element that advocates should refrain from making frivolous and vexatious objections, or seeking unnecessary adjournments intended to delay Court proceedings that eventually lead to unfair administration of justice.

3.13 KNOWLEDGE OF FACTS ASSISTING OPPONENT:

This duty provides an exception while prosecuting. Trial advocates who know of facts or witnesses likely to assist their opponents are generally not obliged to inform the latter or the Court about them to the detriment of their client. However, if they know that, for instance, a relevant affidavit has been filed in the proceedings and is therefore notionally within the knowledge of the Court, there is a duty to inform the judicial officer of its existence. This duty is also consistent with the trial advocate’s duty as an officer of the Court.

3.14 DUTY WHEN PROSECUTING TO ACT WITH SCRUPULOUS FAIRNESS:

Only an advocate who is fair can be aptly described as an officer of the Court. The duty of fairness is inherent in the nature of the work performed by an advocate. S/he should always conduct him/herself with fairness while dealing with fellow advocates, members of the public, clients or witnesses that s/he meets in Court. Fairness is a legal requirement provided for in Article 50 of the Constitution of Kenya, 2010.

An advocate should also be fair when the other side is not represented by an advocate to ensure that no advantage is taken of the party’s lack of knowledge of the law and procedure. The duty of fairness also requires that an advocate brings to the attention of the Court all the authorities relevant to the point at issue whether the cases or the authorities support or undermine the advocate’s viewpoint.

Lord Reid summed up this duty in Rondel v. Worseley (1969) 1 A.C 191. as:

An officer of the Court concerned in the administration of justice, the advocate has an overriding duty to the Court, to the standards of his profession and to the public, which may and often does lead to a conflict with his client’s wishes Accordingly, an advocate has a duty to be fair, fair to the Court and

fair to the public. So important is fairness to the Court and the public that the public duty prevails over the duty to the client if there is a conflict. It is by fairness that the public judges the profession.

Advocates prosecuting a criminal case on behalf of the State must ensure that every material point is made which supports the prosecution. When presenting the evidence, prosecutors should:

• do so dispassionately and with scrupulous fairness;
• not regard themselves as appearing for a party;
• lay before a Court fairly and impartially the whole of the facts which comprise the case for the prosecution;
• assist the Court on all matters of the law applicable to that case and any mitigating circumstances. Generally the duty of trial advocates towards the Court can be summarised as an obligation of honesty and directness, as the Courts depends entirely upon advocates who appear before it as the need for integrity is absolute.

3.15 DUTY TO OBEY COURT ORDERS:

An advocate must uphold utmost respect for Court orders in order to maintain the dignity of the Court.

S/he must therefore avoid issues such as:

• obtaining and executing decrees without sending the draft to the other side for approval; (See, Mwangi Mbothu v. Gachira Waitimu, CA Civil Application No. 23 of 1993)
• showing a client how to circumvent Court orders and disobey injunctions (See, Shuck v Gemer (1846) 2 Ph 113.).
  
• obtaining ex parte injunctions without full disclosure (See, Tiwi Beach Hotel v. Staum, (1940) 2 KAR 189.).
  

3.16 DUTY TO RESPECT THE COURT:

Advocates must respect the Court. Respect comes in all forms - preparedness and timeliness are some aspects for consideration.

Being familiar with the facts and law applicable to a case, and knowing a client's position, are some of the most fundamental display of respect for the Court process.

In the matter of In re: Vinay Chandra Mishra (1995) 2 SCC 534 the contemner who was a Senior Advocate, President of the Bar and Chairman of the Bar Council of India, on being questioned by a Judge started to shout and said that no question could have been put to him and that he will get the High Court Judge transferred or see that impeachment motion is brought against him in Parliament. The Supreme Court of India while sentencing him to simple imprisonment for six weeks suspended him from practising as an advocate for a period of three years and observed as follows:

The contemner has obviously misunderstood his function both as a lawyer representing the interests of his client and as an officer of the Court. Indeed, he has not tried to defend the said acts in either of his capacities. On the other hand, he has tried to deny them. Hence, much need not be said on this subject to remind him of his duties in both the capacities. It is, however, necessary to observe that by indulging in the said acts, he has positively abused his position both as a lawyer and as an officer of the Court, and has done distinct disservice to the litigants in general and to the profession of law and the administration of justice in particular.

However, a Constitution Bench in the same Court in the case of Supreme Court Bar Association v. Union of India & Anr. (1998) 4 SCC 409 overruled In re: Vinay Chandra Mishra (1995) 2 SCC 534 and held that:

The power of the Supreme Court to punish for contempt of Court, though quite wide, is yet limited and cannot be expanded to include the power to determine whether an advocate is also guilty of "professional misconduct" in a summary manner which can only be done under the procedure prescribed in the Advocates Act, 1961. The power to do complete justice under Article 142 is in a way, corrective power, which gives preference to ‘equity’ over ‘law’ but it cannot be used to deprive a professional lawyer of the due process contained in the Advocates Act by suspending his licence to practice … while dealing with a case of contempt of Court… . An Advocate who is found guilty of contempt of Court may also … be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that Advocate [in accordance with law and with a view to maintain the dignity of the Court] by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case.

3.17 DUTY NOT TO MALIGN THE REPUTATION OF A JUDICIAL OFFICER:

Of late, there is growing tendency amongst some of the advocates of not only maligning the reputation of judicial officers but also adopting defiant attitude and casting aspersions for having failed to persuade the Court to grant an order in the terms they expect. Some advocates have as well taken a step further of using their clients in maligning the reputation of judicial officers in instances where they fail to secure the desired order from the said officers (See, M. Y. Shareef & Anr. v. Hon'ble Judges of Nagpur High Court & Ors., (1955) 1 SCR 757; Shamsher Singh Bedi v. High Court of Punjab & Haryana, (1996) 7 SCC 99 and M. B. Sanghi, Advocate v. High Court of Punjab & Haryana & Ors., (1991) 3 SCC 600.

In M. B. & Sanghi, Advocate v. High Court of Punjab & Haryana,35 the Supreme Court of India observed that:

The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped fat the bud. And, when a member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system the damage caused is not only to the reputation of the concerned Judge but also to the fair name of the judiciary, veiled threats, abrasive behavior, use of disrespectful language and at times blatant condemnatory attacks … are often designedly employed with a view to taming a Judge into submission to secure a desired order. Such cases raise larger issues touching the independence of not only the concerned Judge but the entire institution … . It is high time that we realise that the much cherished judicial independence has to be protected not only from the Executive or the Legislature but also from those who are an integral part of the system.

The question as to whether an advocate (a contemnor) who has tendered an apology for maligning the reputation of judicial officer can escape punishment was discussed in the case of L. D. Jaikwal v. State of Uttar Pradesh.36 The Court held that:

… merely because the appellant has tendered his apology we should set aside the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule and not as an exception, we would in fact be virtually issuing a 'licence' to scandalize Courts and commit contempt of Court with impunity. It will be rather difficult to persuade members of the Bar, who care for their self-respect, to join the judiciary if they are expected to pay such a price for it. And no sitting Judge will feel free to decide any matter as per … his conscience on account of the fear of being scandalized and prosecuted by an advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation were to be countenanced, advocates who can cow down the Judges, and make them fall in line with their wishes, by threats of character assassination and persecution will be preferred by the litigants to the advocates who are mindful of professional ethics and believe in maintaining the decorum of Courts.

3.18 A LAWYER'S DUTY TO EDUCATE CLIENTS ABOUT THE COURT PROCESSES IN THE INTEREST OF PROMOTING THE PUBLIC'S CONFIDENCE IN THE ADMINISTRATION OF JUSTICE:

It is the duty of an advocate to educate a client about the Court processes in the interests of promoting public confidence in the administration of justice. Education can be based on the limits of the law as well as professional obligations. Thus, advocates are mandated to ensure that the society:

• · has a knowledge and understanding of the law;
• · appreciates the values advanced by the rule of law;
• · has a knowledge and understanding on judicial system in Kenya, and
• · has a knowledge and understanding on the value of Judges, advocates and other judicial officers.

In view of the above, it may be noted that an advocate's duty to the Court touches upon nearly every aspect of one’s practice. The moot question relates to determining when duties to the client are secondary to those owed to the Court. This is yet to be made crystal clear and as such, advocates may face difficulties when duties conflict as they cannot be able to provide proper guidance to their clients. The only hope is that advocates should be prepared to address such issues whenever they arise with a fuller understanding of their duty to the Court.

4. TRIAL ADVOCATE’S DUTY TO THE OPPONENTS:

Trial advocates owe duties to the opposing counsel extending from the pre-trial stage up to the point of sentencing and/or acquittal. This is governed by rules of professional conduct, breach of which leads to consequences and so as the conventions of etiquette to be observed by an advocate towards the opposing counsel that goes beyond courtroom to everyday dealing in legal matters. A true advocate practices his art at all times, both in and out of the Courts. These duties extend from pre-trial to point of sentencing or acquittal. These duties are explained below:


4.1 DUTY TO MAINTAIN CIVILITY IN DEALING WITH OTHERS:

When dealing with others, a trial advocate should be courteous, civil and act in good faith with all persons including opponents with whom s/he deals with during the course of practice. An advocate's duty to be civil to opposing counsel, includes the duty:

a) not to engage in acrimonious exchanges with opposing counsel or otherwise engage in undignified or discourteous conduct;

b) to be honest and truthful with opposing counsel; and

c) to be accommodating and flexible regarding scheduling and routine matters.

4.2 DUTY TO MAINTAIN AN HONEST RELATIONSHIP WITH OPPOSING COUNSEL:

A trial advocate has a duty to maintain an honest relationship with an opposing counsel. The failure to fulfil this obligation was demonstrated in Law Society of British Columbia v. Jeffery, (1996) L.S.D.D. No. 250. where during the course of the litigation, a Court official instructed an advocate that the trial, which was scheduled to begin in three days, had been taken off the trial list. The advocate undertook to inform opposing counsel. However, in the hopes of reaching a settlement with the defendant, the advocate did not tell the opposing counsel immediately but instead sent a revised offer to settle. Opposing counsel subsequently discovered from a different source that the trial had been adjourned. The discipline panel held that the lawyer was under an obligation to the Court to promptly pass on the information. It rejected the argument that this was a situation analogous to that of an advocate possessed of information developed during the adversarial process for the use of his client.

4.3 COURTESY AND RESPECT TOWARDS COLLEAGUES:

Professional courtesy may properly be considered professional fairness, but may be used as a tool to persuade others, including the Court and clients, that lawyers act with professional integrity. Advocates acting with professional integrity will likely be more successful when asking for what they want whether from opposing counsel or the Court.

Opponents are entitled to respect and display courtesy in and out of the Court. It helps to gain the other parties’ respect and advances the cause of their client and their own career. Advocates who treat their opponents rudely are unlikely to gain respect and cannot expect to be treated politely.

Courtesy can be demonstrated in several ways i.e., salutation-‘senior, wakili, making space for seating, order of addressing the Court by allowing a colleague looking at the document at your possession, accommodating genuine reasons for adjournment of an application, conserving time allowed, keeping emotions and high tone in check, and focusing on issues and not the person.

Respect, in the other hand, is accorded to senior counsels regardless of whether they are opposing counsel or not. Seniority is not in terms of age, but it rather alludes to when one signed the roll of advocates. Seniority of an advocate can as well be determined by the office an advocate holds (i.e., the Attorney General and the Solicitor General) regardless of the day the advocate signed the Roll of Advocates.39

4.4 DUTY TO DISCLOSE

An advocate must always disclose to the opposing counsel any information pertinent to the case in due time. Thus, there is need to inform an opponent the authorities an advocate plans to rely on to avoid chances of misleading the Court. Advocates should as well bring into fore procedural irregularities before the Court during the hearing and not to reserve matters to be raised on appeal.

The Law Society of Kenya Digest on Professional Conduct and Etiquette gives proper directions as to how full disclosure should be undertaken. An advocate must always ensure that a copy of the list of authorities s/he intends to use in their matter is submitted to the opposing counsel at least a day prior to the hearing of their matter (Refer to Rule 28, The Law Society of Kenya Digest on Professional Conduct and Etiquette).

The rules of full disclosure are such that the advocate should not:

• · obstruct the opposing counsel’s access to evidence;
• · alter, destroy or conceal any evidence if s/he knows fully well that the evidence is or shall be subject to discovery in Court;
• · assist any other person to alter, destroy or conceal any evidence, and
• · falsify evidence in favor of their case or assist any other party to do the same.

4.5 DUTY NOT TO UNNECESSARILY EMBARRASS THE OPPONENT:

This may happen when the trial advocate fails to notify the opposing counsel of legal opinion not evident from papers. This has effect of undermining reputation of the colleagues and the reputation of the profession. Thus, trial advocates should at all times strive to maintain honour and dignity of the legal profession.

The Law Society of Kenya Digest on Professional Conduct and Etiquette provides that an advocate should always inform his opponent if he proposes to brief counsel or leader from senior bar. Moreover, an advocate, who has briefed counsel or leader from junior bar, should maintain close liaison with their leader. In particular cases should not be taken out off the list nor should hear dates be altered without first obtaining agreement with the leader (See Rule 16, The Law Society of Kenya Digest on Professional Conduct and Etiquette).

4.6 DRAW ATTENTION TO CASE/PROVISION OPPONENTS OVERLOOKED:

In case a trial advocate knows a case or legislative provision that has been omitted, or if an opponent makes incoherent reference to a case or provision, it is the duty of a trial advocate to draw the Court’s attention to it even if it assists an opponent’s case.

4.7 DUTY NOT TO INCONVENIENCE OR HARASS OPPONENTS:

A trial advocate should not wait till the last minute to reply to the opposing counsel, or insist that a matter proceeds even before the counsel has studied the file, or insist on attendance of witness who cannot attend on time. For instance, if a matter is urgent, it should be indicated as URGENT, some advocates have specified stamps for urgent matters, or use stickers.

The Law Society of Kenya Digest on Professional Conduct and Etiquette provides that attention is drawn to the absolute necessity of advocates replying to correspondence with minimum delay, particularly in case of correspondence with other advocates and the law society. Failure to reply to correspondence has been held to amount to professional misconduct.43

4.8 DUTY WHEN PROSECUTING TO PROVIDE EVIDENCE ASSISTING THE DEFENCE

It is essential for prosecuting advocates to ensure that all relevant evidence is either presented or made available to the defence before prosecution process begins. The duty applies only to the prosecution. The defense is exempted since the burden of proving a case lies on the prosecution.

4.9 DUTY TO AVOID PERSONALITY CONFLICTS WITH OPPONENTS:

Trial advocates should at all times remember that clients are litigants and they should therefore be impartial and keep their personal feelings aside. Clients come and go but the profession remains, any bad blood that may exist between the clients during litigation should never be allowed to influence the advocates in their conduct or demeanour towards each other or the parties they are representing. Presence of animosity between them in a matter may cause clouded judgement triggered by emotional factors thereby hindering the proper resolution of matter in the best interest of their client. Personal remarks and references between them should be avoided.

4.10 DUTY TO OBTAIN CONSENT BEFORE PLACING MATERIALS BEFORE COURT:

Trial advocates are required to obtain consent from the Court’s presiding officer before presenting any new and relevant evidence to the Court. The principle here is that advocates are agents of the Court and helps it to come to the truth. Equally, a trial advocate has a duty to seek consent from an opposing counsel when introducing new evidence after substantial hearing of the case has been completed.

4.11 DUTY TO AVOID SHARP PRACTICE:

It has been observed that ‘law suits are not tea parties and lawyers are not potted plants, living things that stand mute.’ While a client is important, an advocate has an obligation to others as well. It is for this reason that the use of trial tactics that go beyond the vigorous representation of a client’s case and enter into sharp practice are not permitted. The rules dictate that when advocating on behalf of a client, a lawyer remains bound by his duty to the Court, the administration of justice and opposing counsel. These duties cannot be abandoned for the sake of trial tactics.

The Law Society of Kenya Digest on Professional Conduct and Etiquette categorically states that it is wrong for an advocate to tape record by any means a telephone conversation with another advocates client except, with that advocates consent.44

4.12 DUTY OF FAIRNESS:

The duty to act in fairness is inherent in the nature of the profession or work done by advocates. In

Rondel v. Worseley,45 Lord Reid J. summed it up as follows:

“… as an officer of the Court concerned in the administration of justice, the advocate has an overriding duty to the Court to the standards of his profession and to the public, which may and often does lead to a conflict with his client’s wishes.”

The duty therefore also extends to the opposing counsel i.e., an advocate must not seek to obtain and execute decrees without sending out the draft for the other side’s approval as was illustrated in Mwangi Mbothu v. Gachira Wairimu.46

4.13 CORRESPONDENCE:

An advocate is duty bound to deal promptly with any communication from other professional colleagues (opposing counsel).

The Law Society of Kenya Digest on Professional Conduct and Etiquette provides that it is of absolute necessity for advocates to reply to any form of correspondence from the opposing counsel with minimum delay and reasonable promptness.47 Thus, professional letters and communication from opposing counsel that require a reply should be dealt with urgently in fulfilling all commitments as stipulated.

An advocate should also correspond in a civil and respectful manner in all their interactions with other advocates. Failure to do so is tantamount to professional misconduct.

Advocates are not permitted to communicate or to negotiate a matter directly with any person who is represented by another lawyer except with the express consent of the opposing counsel.

4.14 DUTY TO BRIEF OPPONENTS:

It is essential for advocates to brief the opposing counsel on reasonable requests concerning trial dates, adjournments, any waiver of procedural formalities and other matters that do not prejudice the right of the client. The Law Society of Kenya Digest on Professional Conduct and Etiquette clearly stipulates that an advocate should always inform his/her opponent if they so wish to have cases taken off the list or hearing dates altered.48 Thus, an advocate should not act arbitrarily without consulting opposing counsel. S/he must give notice to the opposing counsel where s/he intends to apply to have the pleadings of the opposing counsel struck out for being an abuse of the Court process for some default.

4.15 PROFESSIONAL COURTESY:

Professional courtesy is defined as extending to the other side an assistance to which the other side is in law entitled to as long as the cause of justice is not affected nor any substantial prejudice occurs to the lawyer’s own client.

Advocates must be courteous to each other at all times. Clients do come and go but the profession remains as it is. Any bad blood or acrimony that may be exhibited by a client, particularly during litigation, should never be allowed to influence the advocates in their conduct and demeanor toward each other or the parties they are each representing.

The presence of personal animosity between advocates in a matter may generally cause clouded judgment triggered by emotional factors thereby hindering the proper resolution of a matter before the Court in the best interest of their clients.

Courtesy demands that personal remarks or references between them within or without the premises of the Court must be avoided.

Courtesy is in relation to the order of seniority. Proper respect must be accorded to seniors irrespective as to whether they are opposing counsel or not. According to the Advocates Act, Cap 16, seniority in this respect is not in terms of age but it alludes to when one signed the Roll of Advocates.49 Seniority of an advocate can as well be determined by the office an advocate holds (i.e., the Attorney General, and Solicitor General) regardless of the day the advocate signed the Roll of Advocates (See S.20, the Advocates Act, Cap 16. )

Courtesy can be considered in many ways: it may be common courtesy to honour professional undertakings of the opposing counsel by for e.g., paying damages on time. It can also be deemed to be a professional courtesy where an advocate does not undertake something that cannot be fulfilled whatsoever. It is therefore essential that undertakings must be in writing and absolutely unambiguous.
 

 Moreover, if an advocate giving an undertaking does not intend to accept any personal responsibility, that should be expressly stated in an undertaking made. In the absence of such a statement, the person to whom the undertaking is given may expect that the advocate giving it will personally honour it.

4.16 CONFIDENTIALITY:

Ethics demands that a counsel should not disclose any confidential information disclosed to him/her by an opposing counsel.

4.17 DUTY TO AVOID SHARP PRACTICE:

An advocate should always act in good faith and more importantly avoid sharp practice. This means that an advocate should not:

• · take advantage of or act without fair warning to the opposing counsel upon slips, irregularities or mistakes on the part of the other party;
• · impose on opponents impossible, impractical or manifestly unfair conditions during and after the clients’ matter for instance, unfavourable conditions in respect to time and payment of penalty interest;
• · attempt to directly communicate with the opposing counsel’s client in a bid to jeopardize the case or to engage in negotiations with such client without the knowledge or consent of the opposing counsel,
• · resort to trickery in engaging with opposing counsel or a client of an opposing such as using a tape recorder or any other devices to record a conversation51;
• · represent a client who persists in such improper conduct. S/he should not consider him/herself a mere mouth-piece of the client;
• · use restrained language in correspondence, scurrilous attacks in pleadings, and use intemperate language during arguments in Court.

5. TRAIL ADVOCATE’S ETHICAL DUTY TO A CLIENT:

The Constitution of Kenya, 2010 lays the basis for the right to legal counsel.52 However, the right cannot be properly exercised if an advocate does not adhere to the Code of Conduct for Advocates at the time of instruction, institution, trial and conclusion of a client’s matter. Generally, failure to adhere to such Code leads to injustice on the part of a client. Consequently, the law has imposed certain obligations53 on an advocate to ensure that the interests of clients (who are major source of income for an advocate) are properly protected.54 Such obligations, inter alia, include:

5.1 DUTY TO EDUCATE CLIENTS:

Trial advocate's duty to the Court requires that an advocate educate clients about the Court processes in the interests of promoting the public's confidence in the administration of justice. This requires an advocate to educate clients about:

a) the limits of the law;

b) professional obligations;

c) values advanced by the rule of law;

d) judicial system and the value of lawyers, judges, juries and many other participants in the system.

5.2 DUTY OF DUE CARE AND DILIGENCE:

An advocate has the duty to act with due diligence and reasonable care to the client as a result of the professional relationship between them in which an advocate is always expected to act professionally and not negligently. In National Bank of Kenya v. E. Muriu Kamau and Another,55 the Court reiterated that an advocate is required to have a reasonable duty of care and skill in the execution of his/her duties. In Kinluck Holdings v. Mint Holdings,56 the Court went ahead to explain that if the advocate breaches the duty s/he owes to the client, s/he may be liable professionally.

In Abraham v. Justsun,57 Lord Denning MR also held that:

[It is an] advocate’s duty to take any point which he believes to be fairly arguable on behalf of his client…He is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby deceives the Court.

Moreover, in Gran Gelato Ltd. v. Richcliff (Group) Ltd.,58 that involved a solicitor’s replies to preliminary enquiries in a conveyancing transaction, the Court stated that a solicitor owes a professional duty of care to the client and no-one else. He is subject to professional rules and standards, and owes duties to the Court as one of its officers.

Exceptionally, an advocate may owe a duty to a non-client. The decision in Hedley Byrne v. Heller & Partners59 suggests that an advocate who provides professional advice aware that the person to whom the advice is given would be relying thereon could not argue that there was no contract for the service, and could be held liable. In the said case, the Court found that there was a special relationship between an advocate and a client that gave rise to a duty of care.60

5.3 DUTY TO COMPETENTLY DEFEND/REPRESENT A CLIENT:

A trial advocate is believed to possess sufficient qualifications and skill to undertake a brief. S/he should thus provide competent legal representation to a client. Competent representation requires adequate legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.61 The advocate must do so, without abandoning the case, to the conclusion of the suit even if that client fails to pay his fee. Once a suit is concluded, an advocate is entitled to sue for his fees.62

5.4 DUTY TO FEARLESSLY UPHOLD THE INTERESTS OF A CLIENT:

Various Courts have upheld duty to fearlessly uphold the interests of the client as one of the major ethical duties of a lawyer to his client. For instance, in Kinluck Holdings v. Mint Holdings,63 the Court held that an advocate owes his duty to the client, the breach of which makes him/her liable to the client.

The English House of Lord’s case of Medcalf v. Weatherill and Another64 has attempted to explain the duty of an advocate to fearlessly uphold the interests of the client in even better terms. According to the Court:

• · the duty of an advocate to the client is a constitutional guarantee;
• · there should be no pressure from the Executive, Judiciary or any other body requiring an advocate not to represent certain clients, or employ pressure that can deter an advocate from representing a client effectively;
• · unpopular and unmeritorious clients ought to be represented without the advocate being penalized or harassed by any institution or person, and
• · an advocate must avoid situations where his/her conduct of a case is not driven by the needs of a client but by the advocate’s own interests.

Lord Brougham has also held (in his famous defence of Queen Caroline):

An advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the world – the client and none other. To save the client by all expedient means, to protect the client at all hazards and costs to all others and among others to himself, is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring on any other. Nay, separating even the duties of a patriot from those of an advocate and casting them if need be to the wind, he must go on reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client’s protection.65

In the Kenyan situation, there are several instances where advocates have been under pressure not to represent certain clients. For instance, the pressure on Counsel Cliff Ombeta when he chose to represent the police officers who were allegedly involved in the murder of Advocate Willie Kimani, and in a more recent case of the extradition of the Akasha brothers was unethical. However, it may be noted that the duty to the client is subservient to an advocate’s duty as an officer of the Court i.e., to uphold justice. This is apparent in the UK case of Rondel v. Worsley66 where the Court held that the advocate is simply not the mouthpiece of the client, s/he has a calling higher than that of truth and justice.

5.5 DUTY NOT TO BREACH THE CONFIDENTIALITY OF THE CLIENT:

In the course of interactions with a client, an advocate comes across a lot of client’s information often given in confidence which if not used in an ethical manner, it can be antithesis to a client’s case and future legal prospects. Such information should be safeguarded, and except in exceptional circumstances as provided for under Section 134 of the Evidence Act, Cap 80 it should not be divulged. This was reiterated in Omari S/O Hassan v. R.67 Thus, disclosure of information made in the course of employment as an advocate is permissible only:

a) when there is a client’s express consent;

b) on any communication made in furtherance of any illegal purpose, or

c) on any fact observed by any advocate in the course of his employment showing that any crime or fraud has been committed since the commencement of employment.68

The objective of the duty to confidentiality is to ensure that the client can confide completely and without reservation to the advocate.69 It is important to note that the privilege:

 a) extends to oral communication and documentary information received from a client in the course of acting for a client;

b) survives the death of a client, so long as there is an issue in which the client’s interests are in question.

In other words, it continues even after the employment of an advocate has ceased;70

c) extends to communication made to the advocate’s interpreters, clerks and/or servants of an advocate.71 However, this privilege is not absolute and it may be overlooked in certain cases.72

In King Woolen Mills and Another v. Kaplan and Stratton Advocates,73 the Court held that:

the fiduciary relationship created by the retainer between the client and his/her advocate(s) demands that the knowledge acquired by the advocate while acting for the client be treated as confidential and should not be disclosed to anyone else without that client’s consent. This principle exists even where an advocate acts for more than one party as a common advocate and continues long after the matter for which the retainer was created has been concluded hence a special type of agency relationship is created.

The duty not to breach the confidentiality of the client has also been cited in the case of Lizzie Borden. In the late 1800s, Ms. Borden apparently killed her father and the only witness to the murder, her mother. She was tried and acquitted of the murder in 1892. Since then, the law firm that represented Ms. Borden refused to open up her file in spite of pressure from scholars. The case raised two important issues as to:

• · whether confidentiality should live past the death of the client? and
• · how many years after death the file can be made public?

In Swidler & Berlin v. United States,74 the United States of America Court was able to answer the first question when it held that privilege and confidentiality outlives the life of the client. However, the issue as to how long after death the file can be made public is yet to be decided.75

Following the Swidler & Berlin case,76 it is one thing to state unequivocally that the privilege does or does not survive death. There are however practical questions yet to be answered, for instance:

• · Who will enforce the privilege 50, 75, or 100 years when the relevant actors, immediate executors and heirs are all dead and the law firm is defunct?
• · If the privilege is breached, who will complain and who can be held liable or responsible for any wrongful actions?
• · Whether such a situation can be considered as an inadvertent waiver of confidentiality interests? and
• · Who can be held responsible for any arguable damage to the reputation of the client?77

Taking into account the above questions, Klinefelter and Laredo have held that, whereas during the life of the client, the issue is not controversial, after the client’s death and the elapsing of a significant time, the question of confidentiality will continue posing an ethical dilemma until the Courts decides it in a definitive manner.

5.6 LOYALTY:

An advocate generally has the duty to ensure that s/he has complete, undivided loyalty to the client’s interests. S/he should not be compromised. In other words, the interests of other parties should not influence his/her duty to the client. Such loyalty should thus be total and sincere. This is apparent in the case of Amina and Others v. R. where the Court barred an advocate from representing a client in a matter in which he had acted for the opposite party in the interests of justice.

The duty also includes the duty to:

• · avoid any conflict of interest, existing or contemplated, and
• · provide good, independent and honest advice as pronounced in the Code of Conduct for Advocates.

5.7 DUTY TO LISTEN AND ACT ON CLIENT’S INSTRUCTIONS:

The advocate also has the duty to listen and act on the instructions the client presents and advise him/her accordingly. An advocate acting other than on the instructions of a client commits professional misconduct. Besides, any action carried out may not bind a client and can easily constitute a breach of contract.

After the instructions, s/he should advise the client on the next course of action. However, if the matter is unethical or illegal, from which a course of action cannot lie, s/he should:

· advise the client accordingly on the futility, illegality or the unethicality;

· decline to carry out the illegal or unethical instructions.

5.8 DUTY TO ACCOUNT TO THE CLIENT:

An advocate has duty to account to the client. Thus s/he should:

• · inform well on time where s/he chooses to opt out of advising or representing a client;
• · disclose the likely success or otherwise of the case to the client;
• · present any alternatives to the course of action a client might have other than the Court process.
• · account to all the money that s/he receives on behalf of the client including the interests that may be earned. An advocate should also pay back any money that a client might pay in excess of the requisite legal fees;
• · avoid self-dealing. In other words, an advocate cannot misuse to his benefit the assets of his client.

In some cases, such as conveyancing, an advocate may act for both parties in the buying and selling of property. In this case, the Court has explained that it is unethical for the advocate to act for one party against another in King Woollen v. Kaplan and Stratton.

5.9 DUTY TO EXPEDITE PROCEEDINGS:

An advocate also has a duty to expedite proceedings. Litigation can be an expansible exercise for the clients. Consequent, as far as possible, the client should refrain from asking for adjournments whose only purpose is to delay the trial. This not only wastes the Court’s time, but it also delays justice for the client.

5.10 DUTY TO COMMUNICATE WITH THE CLIENT:

Establishing and maintaining an efficacious and professional relationship with clients is a hallmark of a successful advocate.78 This will be determined by the level of communication which an advocate has with his/her client. An advocate is thus duty bound to adequately communicate with a client (in a language s/he understands) regarding his/her conduct in order for a client to make an informed decision regarding representation.

Moreover, after taking instructions, an advocate should also (in order for a client make an informed decision concerning representation) advise a client concerning the advantages and disadvantages of embracing alternative dispute resolution mechanisms to settle the dispute.

In the course of representation, an advocate should as well keep a client reasonably informed about the status/developments of a matter and promptly comply with requests for information by a client.79 Communication is thus facilitative of competent representation and supportive of continued client trust, confidence and professional relationship.

5.11 DUTY TO DISCLOSE:

This duty includes the following:

a) The duty to disclose the likely success or otherwise of actions that would be taken by an advocate and alternatives that may be available should be given greater emphasis. This is so especially in the context that litigation should be a remedy of last resort. An advocate who fails to honestly disclose the true chances of success puts his/her interests before those of his/her client as s/he is presumed to seek earning higher fees through litigation rather than advising a client on cheaper and expeditious available alternatives measures to settle a dispute.

b) Duty to disclose financial benefits to the client: The duty to disclose financial benefits arises from the agency relationship between an advocate and a client that demands, inter alia, good faith and transparency. In United Insurance Co. Ltd. v. Dorcas Amunga,80 Justice Alnashir Visram stated that the relationship between an advocate and a client is governed by the retainer which is the contract that determines their rights and liabilities subject to terms which the law will infer in the particular circumstances. The authority of an advocate to act for his client will therefore arise from the retainer. The conduct of the advocate under the retainer will also be governed by the Advocates Act.

c) Duty to disclose conflict of interest: An advocate should not act in a matter where s/he is likely to be called as a witness. S/he must therefore ensure that there’s neither conflict of interest nor likelihood of such a conflict arising subsequently during the trial process. In King Woolen Mills and Another v. Kaplan and Stratton Advocates,81 the respondent firm had acted for both a lender and a borrower in a previous transaction. The borrower defaulted and sought to question the security of the transaction. The Court of Appeal held that since the firm was aware that there was likely to arise a conflict between the lender and the borrower, and since having acted for both parties they were in a position to be privy to information pertaining to the appellant’s case, they would not purport to enforce the said securities to the prejudice of the appellants.

5.12 COURTESY:

An advocate is enjoined to treat clients with utmost respect, fairness, candour and courtesy. S/he should uphold the dignity of a client at all times within and without the Court premises and his/her office.

 
5.13 DUTY OF AN ADVOCATE ACTING FOR BOTH PARTIES IN A TRANSACTION NOT TO ACT AGAINST ONE FOR THE OTHER:

If an advocate acts for both parties in the same transaction, s/he should not act for one against the other.

This was stated by the Court of Appeal in King Woollen v. Kaplan & Stratton82 where it held that:

The fiduciary relationship83 created by the retainer between client and advocate demands that the knowledge acquired by the Advocate while acting for the client be treated as confidential and should not be disclosed to anyone else without the client’s consent. That fiduciary relationship exists even after conclusion of the matter for which the retainer was created.

The decision was upheld by the same Court in Uhuru Highway Development Ltd and 3 others v. Central Bank of Kenya and 4 Others,84 where an advocate who had acted for both parties in the preparation of a charge was barred by the Court of Appeal from appearing as a witness for one party against the other in an ensuing dispute before the High Court.

5.14 DUTY TO CHARGE REASONABLE FEES:

An advocate should charge a client reasonable fees which is consistent with Advocates Act, Cap 16 and the Advocates (Remuneration) Order, 2009. Section 45 of the Advocates Act provides that an advocate and his client may fix the amount of an advocate’s remuneration by agreement. Besides, an advocate should not stipulate a fee contingent on the results of litigation, or agree to share the proceeds of litigation.85 Giving an advocate an interest in the subject matter of a suit is against professional ethics and violates public policy.

Moreover, an advocate should not charge less than the set limit provided under the Advocates (Remuneration) Order, 2009 Order.86 Doing so will constitute an undercutting and is an offence under Section 36 of the Advocates Act, Cap 16.

Further, an ideal advocate is obligated to disclose, discuss and conclude the issue of legal fees and other payments to the client from the onset.

5.15 DUTY TO PROVIDE SOUND LEGAL ADVISE:

An advocate should strife to give true, accurate and sound advise to the client, in a language s/he understands, on the merits of a case and more importantly do what is considered right and in the client’s best interest. Such advise should be based on sound legal principles and professional judgement.

5.16 DUTY TO SAFEGUARD CLIENT’S PROPERTY:

Quite often, advocates possess client’s property and may receive money and other things in trust for a client. An advocate is enjoined to safeguard such property and not to mix with his or her own. Besides, s/he should not to use it for his/her benefit. Thus, it is important to have a Client/Trust Account.

Equally, an advocate should safeguard a client’s files and other documents. It is prudent to take an insurance policy for the purpose.

5.17 OTHERS:

a) Duty to act with utmost good faith.

b) Duty to advice the client of any requisite payments over and above their legal fees.

6. TRIAL ADVOCATE’S DUTY TO THE ADMINISTRATION OF JUSTICE:

The following are the duties:

6.1 DUTY TO ASSIST THE STATE AS PROSECUTORS WHEN CALLED UPON:

A trial advocate has the duty to assist the State as prosecutors when called upon as part of his or her functions as officer of the Court. The same rules apply for refusing a ‘cab rank’ rule brief where a prosecutor wishes to decline brief as a prosecutor. Assisting a prosecutor generally aids in the administration of justice.

Sections 5 and 6 of the Office of the Attorney-General Act, 2012 lay down the powers and functions of the Attorney-General. The Attorney-General is empowered to issue directions to any officer performing legal services functions in any Government Ministry. Accordingly, it is the duty of an advocate performing Government legal services to comply with the directive of the Attorney General in the interest of administration of justice in Kenya.

Similarly, the Director of Public Prosecutions exercises State powers of prosecution as enshrined under Article 157 of the Constitution of Kenya, 2010 and Section 5 of the Office of the Director of Public Prosecutions Act, 2013. S/he is required to ensure due regard to the public interest, the interest of the administration of justice and the prevention and avoidance of abuse of legal process. Moreover, s/he is required to set the qualification for the appointment of prosecutors, monitor their training and ensure gazettement of Public Prosecutors in Statutory Corporations. Further s/he can engage the services of a qualified private legal practitioner to assist in the discharge of his mandate. Therefore, it is the duty of an advocate engaged by the Director of Public Prosecutions to ensure that s/he undertakes prosecution in a manner that will uphold, protect and promote human and Constitutional rights of every Kenyan citizen. Thus, when engaged as a prosecutor, an advocate's prime duty is:

· not to seek to convict but to see that justice is done through a fair trial on the merits;

· to make timely disclosure to defence counsel or directly to an unrepresented accused of all relevant and known facts and witnesses, whether tending to show guilt or innocence;

· not to do anything that might prevent the accused from being represented by counsel or communicating with counsel.

6.2 DUTY NOT TO CORRUPT THE ADMINISTRATION OF JUSTICE:

A legal practitioner may be heavily constrained in representing a client who insists on pleading 'not guilty', even though the client has made a frank admission of guilt to the practitioner prior to the trial.87 The advocate should reject such aspersions. It is therefore important for an advocate not to participate in any dishonourable or improper conduct of a client, either in or out of Court despite the request from the client in the interest of administration of justice.88

The duty encompasses the obligation not to participate in, introduce into evidence or rely upon an untrue affidavit sworn by a client. That is an obligation particularly applicable in relation to an affidavit of discovery in civil litigation.

6.3 DUTY TO ASSIST THE STATE BY APPEARING IN LEGAL AID MATTERS WHEN CALLED UPON:

A trial advocate has the duty to assist the State in legal aid matters. This is in matters where the defendant cannot afford a lawyer. This ensures that defendants have a legal representation.89

Chapter 4, Part 2 of the Constitution of Kenya, 2010 categorically provides that every accused person has a right to a fair trial, which includes the right to:

• · choose, and be represented by, an advocate and to be informed of such right promptly90;
• · have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of such right promptly.91

There are many other provisions of the Constitution that are relevant to the concept of free legal aid. These include:

• · the value of social justice under Article 10;
• · provisions on equality before the law under Article 27;
• · provisions on protection of marginalised and vulnerable persons and the requirement under Article 159 that justice shall be done to all irrespective of status.

The overarching notion to be derived from these provisions is that it is difficult to achieve justice where one party has to compete with the elaborate machinery and resources available to the opposite party. The Constitution thus expressly provides for the legal representation of an accused person unable to afford legal fees.92 This is mandatory and cannot be taken away by an ordinary law as was held in Shobharam case.93 However, in Legal Aid South Africa v. Van Der Merwe and Others,94 the Court held that a Court cannot be required to provide legal representation at State expense where this is not necessary, because the person concerned is able to afford such representation him/herself.

Apart from the Constitutional provisions, the Government of Kenya has also established a legal and institutional framework for the provision of legal aid. The Legal Aid Act, 2016, was enacted in order to:

• · give effect to Articles 19(2) (general provision on the Bill of Rights); 48 (right of access to justice) and 50(2)(g) and (h) (right of fair hearing) of the Constitution;
• · facilitate access to justice and social justice;
• · establish the National Legal Aid Service;
• · provide for legal aid and for the funding of legal aid and for connected purposes.95

The National Legal Aid Service established under the Act as the successor to National Legal Aid and Awareness Programme96 is required, inter alia, to:

• · establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable;97
• · facilitate the representation of persons granted legal aid under the Act;98
• · assign legal aid providers to persons granted legal aid under the Act;99 and
• · administer and manage the Legal Aid Fund.100

The Legal Aid Act, 2016 further provides the general principles of legal aid. Free legal aid can be provided:

• · to persons who qualify for legal aid services i.e., a person who is indigent, resident in Kenya and is a citizen of Kenya, a child, a refugee under the Refugees Act, 2006, a victim of human trafficking, or an internally displaced person, or a stateless person. A person must however make an application for the service in the prescribed manner.
• · in civil, criminal, children, constitutional matters and matters of public interest.101

It is the duty of the Court before which an unrepresented accused person is presented to promptly inform:

• · the accused person of his right to legal representation;
• · the accused person of his right to have an advocate assigned to him if substantial injustice is likely to result; and
• · the National Legal Aid Service to provide legal aid to the accused person.102

The importance of legal representation was first recognized by the African Commission in Advocats Sans Frontiers (on behalf of Bwampanye) v. Burundi, African Commission on Human Rights,103 when it observed that:

Legal assistance is a fundamental element of the right to fair trial more so where the interests of justice demand it … . The right to equal treatment by a jurisdiction, especially in criminal matters, means … that both the defence and the public prosecutor shall have equal opportunity to prepare and present their pleas and indictment during the trial. They must in other words, be able to argue their cases … on an equal footing.104

In Pett v. Greyhound Racing Association,105 Lord Denning held that:

It is not every man who has ability to defend himself on his own. He cannot bring out the point[s] in his own favour or the weakness in the other side. He may be tongue tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses … . If justice is to be done, he ought to have the help of someone to speak for him and who [is] better than a lawyer who has trained for the task.

For the first time in Kenya, the Court of Appeal in David Macharia Njoroge v. R.,106 considered applicability of Article 50(2)(h) of the Constitution on the right to free legal counsel at State expense and expounded on the principle of “substantial injustice.” The Court held:

State funded legal representation is a right in certain instances. Article 50 provides that an accused shall have an advocate assigned to him by the State and at State expense. Substantial injustice is not defined under the Constitution, however, provisions of the International Conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore provisions of the International Covenant on Civil and Political Rights, 1996 and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory… . We are of the considered view that in addition to situations where substantial injustice would otherwise result, persons accused of capital offences where the penalty is loss of life have the right to legal representation at State expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided.

Expounding further on the principle of “substantial injustice,” the Court of Appeal in Karisa Chengo & 2 Others v. R.,107 held:

It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation … . Substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the State obligation to provide legal representation arise.108

In Thomas Alugha Ndegwa v. Republic,109 the appellant, Thomas was charged and convicted of the offence of defilement of a girl contrary to Section 8(1) read together with Sub-Section (2) of the Sexual Offences Act, 2006. He was sentenced to mandatory life imprisonment by the Chief Magistrates’ Court at Thika. The conviction and sentence was upheld by the High Court at Nairobi. In an appeal to the Court of Appeal, during the hearing, the appellant, due to financial constraints, applied for legal representation since he was unrepresented in the two earlier Courts. The issue for determination by the Court was whether the appellant was entitled to receive legal aid as guaranteed by Articles 48 and 50(2)(h) of the Constitution of Kenya, 2010? The Court held that the applicant, according to Article 50(2)(h) of the Constitution read with Section 41 of the Legal Aid Act is eligible to make the application for legal aid to the National Legal Aid Service in person or through any other person authorized by him in writing.

In Hansraj case,110 some railway porters offered satyagraha111 at a railway station. They were arrested, tried and convicted under the provisions of the Railways Act. No information was given to them regarding the date of trial, nor were they told that under Article 22(1) of the Constitution of India, 1950, they had a right to consult and be defended by a legal practitioner. It was held that in such circumstances, Article 22(1) had been violated and the trial was vitiated. In Shobharam case,112 the Supreme Court of India went ahead to hold that a person arrested is entitled to be defended by a counsel at the trial and such right is not lost even if he is released on bail. Thus the right has to be recognised and scrupulously protected.

In order to effectuate the right to consult an advocate of one’s choice properly and reasonably, it is necessary that:

· the right be exercised immediately from the day of arrest113;

· such legal practitioner must be allowed the facility to consult the accused without the hearing of the police. A Court cannot therefore direct consultation between an accused and the counsel in the presence of the police.114

· the right be exercised at the time an accused is being examined.115

This apart, an advocate whom an accused has engaged for his/her defence cannot be put under a threat of prosecution so that he can refrain from discharging his professional duty of defending his client in a fearless manner.116

The Supreme Court of India has in R. D. Saxena v. Balram Prasad Sharma,117 pointed out that:

A social duty is cast upon the legal profession to show the people [beacon] light by their conduct and actions. The poor, uneducated and exploited mass of the people need a helping hand from the legal profession, admittedly, acknowledged as a most respectable profession. No effort should be made or allowed to be made by which a litigant could be deprived of his rights, statutory as well as constitutional, by an advocate only on account of the exalted position conferred upon him under the judicial system prevalent in the country.

The right to legal aid and assistance is thus an integral component of fair trial leading to fair administration of justice as it ensures that an indigent person is not denied fair hearing due to lack of means to hire a competent counsel. However, the provision of free legal aid and assistance is a capital-intensive undertaking which many poor States, including Kenya, have found difficult to implement.118 Therefore, a serious thought need to be given to ways and means of availing the right without compromising national resources that can otherwise be used for other development purposes.

Moreover, to ensure the provision of consistent, competent and timely legal representation, the National and County Governments need to budget for resources to aid legal clinics and support pro bono lawyers and institutions that offer free legal counsel.

6.4 DUTY TO TREAT THE COURTS AND TRIBUNAL WITH RESPECT:

A trial advocate is required to treat the Courts and Tribunals with respect. S/he is therefore required to adhere to the rules of conduct when addressing the Court or a Tribunal.

6.5 DUTY TO THOROUGHLY PREPARE FOR EVERY CASE:

A trial advocate is required to thoroughly prepare for a case to be presented before a Court of law. S/he must address each and every case with seriousness.

The level of preparation for a case should not be based on the amount of legal fees being paid by the client or other factors. Each case should be treated with the seriousness it deserves regardless of either the type of case or the fees being paid.

7. TRIAL ADVOCATE’S DUTY TO WITNESSES:

The general fallacy abounding in the legal fraternity is that an advocate has only a fiduciary duty to his client alone. It’s no wonder many lawyers are rude to witnesses especially during cross examination. Some have used this tactic as a way of intimidating witness by ensuring they quiver in their boots and therefore provide contrary statements that would buttress their client’s case. However, this should not be the case.

Trial advocate owe a number of duties to their witnesses. They, inter alia, include:

7.1 DUTY NOT TO HARASS OR BADGER WITNESSES:

A trial advocate should refrain from harassing, badgering or bullying a witness as such may cause a witness to be confused, agitated or upset and consequently irritate the Court. Even though the approach is adopted by some advocates to intimidate witnesses, it does not necessarily produce the desired results. The evidence obtained might be considered to be given under duress which may be detrimental to a trial advocate’s case. Thus, an advocate should be tactful, gentle and firm but polite at all times. Sallazar v Republic is a good example where the Court deplored an advocate‘s disrespectfulness towards witnesses and the Court at large.

7.2 DUTY TO CONSULT WITH ONE’S OWN WITNESS BEFORE TRIAL:

Trial advocates ought to have a pretrial conference with their witnesses. This is not for the purposes of coaching the witness but to prepare the witness not to be apprehensive in the Court.119 In this context, Daniels Morris observes:

[l]t is permissible to prepare the witness in the general sense for cross examination. Somewhat in the following terms: listen to the question before you answer. If you don’t understand it, say so. If you don’t know any answer, don’t guess. Just say that you don’t know. Don’t worry about what the man has in mind when he asks his question. Just give direct answer. Answer as shortly as possible and don’t make speeches.120

7.3 COURTESY:

Witnesses should be treated with courtesy and respect as they are important to the Court process.

Treating them in a manner seeking to antagonize them will not aid a trial advocate in his cross examination.

7.4 DUTY NOT TO MAKE UNSUBSTANTIATED ATTACKS ON THE CHARACTER OF A WITNESS:

An advocate ought to be civil to the witness and not cast aspersions on the character of a witness especially during cross-examination and to ensure that defamatory statements are kept within the qualified privilege. The Evidence Act, Cap 80 however provides an exception i.e., there must be sufficient reason for attacking a witness character before launching such an attack.121

The Any questions intended to annoy or insult a witness should be avoided. In other words, an advocate should refrain from asking indecent, scandalous, insulting or annoying questions to the witnesses. The Court has discretion to restrain such questions, despite the fact that they may reveal relevant information to the case.122 An advocate should therefore act with integrity and professionalism maintaining his or her overarching responsibility to the Court.123

7.5 DUTY NOT TO WANTONLY OR RECKLESSLY ACCUSE WITNESS OF A CRIME:

An advocate should appreciate that the witness is not on trial. Therefore, when undertaking cross examination, s/he should exhibit professionalism.124 The witness should thus be allowed to undertake their civic duty without perceiving to be on trial.

7.6 DUTY TO HANDLE CHILDREN WITNESSES WITH GREAT CARE AND ENHANCED SENSITIVITY:

The law under Oaths and Statutory Act has provided ways in which a child can be allowed to appreciate the nature of the oath. A trial advocate should be friendly and sensitive to the tender age of the children. The procedure on how to handle such witnesses was laid down in Peter Kiriga Kiune v. Republic125 and in James Wanjohi Kinyua v. Republic.126 In both cases, the importance of voire dire examination by the Court was emphasized.

A trial advocate should avoid any suggestion calculated to induce any child witness to suppress evidence or deviate from the truth. However, an advocate may inform a witness that s/he is not duty bound to submit to an interview, or to answer questions propounded by an opposing counsel unless required to do so by judicial or legal process.

7.7 PAYMENT OF COMPENSATION TO A WITNESS:

An advocates should not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witnesses’ testimony or the outcome of the case. In addition, an advocate may advertise for witnesses to a particular event or transaction but not for the witness to testify to a particular version that advances his/her case.


7.8 DUTY TO INFORM WITNESSES:

An advocate has a duty to inform a witness about the date a case is going to be heard promptly. S/he must also furnish the witnesses with the full details of the case so that their testimony can be correct.

7.9 DUTY TO PREPARE WITNESSES:

A trial advocate has a duty to:

a) advise witnesses how to address the Court:

b) educate witnesses about the procedures that will be followed in eliciting their evidence;

c) assist in refreshing witnesses’ memories by referring to known facts or other evidence and prepare them to stand up to a hostile cross-examination.

7.10 DUTY NOT TO BE UNFAIR OR ABUSIVE TO ADVERSE WITNESSES:

An advocate should never be unfair or abusive or inconsiderate to adverse witnesses or opposing litigants. S/he should ask questions intended legitimately to discredit the assertions of the witness, but not to insult or degrade them.

7.11 DUTY NOT TO COACH WITNESSES:

Rule 8 of the Law Society of Kenya Code of Conduct and Ethics for Advocates requires an advocate not to:

• · coach or permit the coaching of any witness in the evidence s/he will give before any Court, Tribunal or arbitrator;
• · call to give evidence before any Court, Tribunal or arbitrator any witness whom s/he knows to have been coached in evidence without first informing the Court, Tribunal or arbitrator of the full circumstances.

8. COMPETING/CONFLICTING DUTIES OF AN ADVOCATE:

An advocate not only has a duty to his/her client, but s/he still has duties to the Court, public, opponent, witnesses and his personal interests. The exercise of such duty as an advocate has not only led to clashing of roles creating a dilemma as to which way to follow when there is a conflict in the exercise of duties, but also whether all duties should be given equal prominence.

Gavin MacKenzie in The Ethics of Advocacy127 states that a lawyer's duty to the client and duty to the Court are given equal prominence. He goes on to say that in the United States the duty to the client is generally seen as the lawyer's primary duty, while in Britain, Australia and Newzealand, the duty to the Court is pre- eminent. However, in Canada, the two duties are given equal prominence which may make ethical choices in advocacy more difficult.128

8.1 TYPES OF CONFLICTS:

In the exercise of an advocate’s duty, there are four main types of conflicts that may arise. They are:

a) Conflicts between duties to the Court and a client: This may arise in the following situations, where a client:

• · confesses to having committed a crime;
• · intends to give a false testimony;
• · wants to issue proceedings to extort or blackmail someone;
• · action is vexatious or hopeless;
• · refuses to produce a discoverable document; and
• · wants evidence to be called from witnesses who would not assist the client's case or damage the opponent's case.

In case the above situations arise, then it is important to note that the jurisprudence with regard to this matter, in most commonwealth jurisdictions, appears to incline to the fact that the duty an advocate owes to the Court always overrides the duty s/he owes to the client.

This is apparent in Giannarelli v. The Queen129 where an Australian Federal Court noted that an advocate has prior duty to the Court over and above other duties. The Court categorically held that, “a barrister's duty to the Court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice.”

Similarly, in Arthur Hall v. Simons,130 Lord Hoffmann stated that “lawyers conducting litigation owe a divided loyalty. They have a duty to their clients. They also owe a duty to the Court and the administration of justice ... The substantial morality of the English system of trial and appellate procedure means that the Judges rely heavily upon the advocates appearing before them for a fair presentation of the facts and adequate instruction in the law. They trust the lawyers who appear before them. The lawyers trust each other to behave according to the rules, and that trust is seldom misplaced.”

Batrouney Q. C., an Australian Attorney has also noted that, “an advocate being termed an officer of the Court is not a mere formality since the obligations of an advocate to the Court are fundamental and pervade every aspect of practice as a lawyer.131 This thus, implies that the duty to the Court and to justice trumps the other duties.


Moreover, in Rondel v. Worsley132 the UK Court held that “an advocate’s duty to the court is paramount. An advocate is simply not the mouthpiece of the client, s/he owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mis-state facts. He must not knowingly conceal the truth … He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the Court. The Code which requires a barrister to do all this is not a Code of Law. It is a Code of Honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline.” This implies that an advocate may not be able to act in a way that serves the client's best interests if doing so would put the administration of justice and the community's confidence in the profession at risk.133

In Re Integration of Nebraska State Bar Association134 it was held that “a lawyer's primary duty is to assist Judges and all Court staff in the operation of the Court system and administration of justice. An attorney owes his or her first duty to the Court. S/he assumed his or her obligations toward it before s/he ever had a client. His or her oath requires him or her to be absolutely honest even though his or her clients‘interests may seem to require a contrary course. [An advocate] cannot serve two masters and the one undertaken to serve primarily is the Court. An advocate is not a servant of the client … [but a] servant of justice itself. This implies that when there is a conflict between an advocate‘s duty to the client and to the Court, the duty to the Court, which is the agent of justice, reigns supreme.

The Court in the UK in the case of Medcalf v. Weatherill and Another135 however noted that a trial advocate has a duty which is enshrined as a constitutional guarantee to represent his/her client to the best of his/her ability.

In Kenya, the position is similar as of the UK. In a number of cases i.e., Charles Koigi Wamwere and 2 others v. R.,136 the Kenyan Courts have affirmed that while an advocate has a duty to his client, such a duty falls beneath the duty to justice and the Court in the order of importance. For instance, an advocate cannot ethically invoke false evidence in a Court in a bid to win a case.

In Shalimar and Others v. Sadrudin and Another,137 the Court affirmed that in the course of duty, an advocate has an ethical obligation not just to the client, but first and foremost to the Court.

The issue of the obligations to the Court raking higher than that of the client is predicated on public policy that:

• · lawyers are officers of the Court first and purveyors of legal opinions to their clients are second;
• · counsels should retain the implicit trust of the Court and vice versa for the effective administration of justice. Courts should thus trust the counsels to do the right thing even at the expense of their clients as justice, as a social tool, precedents the individual;
• · lawyer is remunerated for his honest and zealous attempt to bring justice to his client and not for winning a case. This removes the temptation to go overboard in a bid to ensure that s/he wins, and
• · the entire judicial process is based on the notion that the public has trust in the Courts and its officers, including the lawyers. Doing what is clearly unethical in order to advance one’s client’s case at the expense of the justice undermines that.

The existing law in Kenya equally supports the argument. As per Section 55 of the Advocate‘s Act, Cap 16 an advocate is an officer of the Court. Therefore, an advocate is duty bound not to mislead the Court regardless of a client‘s interests. All his/her actions must be within the law.

The compromise: The Courts have attempted at striking a balance between these conflicting duties in a way that will prevent the Court from being misled or the client from being placed unnecessarily in jeopardy.

In R v. Davis,138 the appellants appealed against their convictions, on the grounds that certain prosecution witnesses had been kept anonymous from them. The witnesses had attended a trial, cross- examined and observed by a Judge and Jury. Their evidence was given from behind a screen and their voices were disguised to prevent the appellants from identifying them. This had raised an issue as to whether the counsel for the appellants could (instead of the clients) be permitted to see the witnesses to help in cross-examination. The counsel were concerned about their conflicting duties, namely, a) duty to the Court to keep the witnesses anonymous (breach of which duty would be a contempt of Court), and b) duty to their client to describe the witnesses to them (on the basis that relevant information could be obtained). The Court held that the barrister could perform his duty to both by cross-examining from behind the screen. However, if the client wished to obtain possible benefits of his barrister being able to see the witness’ demeanor when cross-examining, then it could only take place if the client consented to a limitation on the barrister‘s usual duty to disclose all relevant information to the client. In Waugh v. British Roads Board139 the plaintiff‘s husband was an employee to Board, and was killed while in the course of his duties in an accident. An internal investigation was done and a report written, titled “For the Board’s Solicitor.” The plaintiff asked the Court to order discovery of the report. The Board claimed professional legal privilege over the report. The Board based this on the fact that the report was for two purposes: a) to establish the cause of the accident; and b) to enable the Board‘s Solicitor to advise in the litigation to ensue. The trial Court ordered discovery. The Board appealed. The Appeal Court overturned the decision. The plaintiff appealed. The House of Lords held that there were two competing principles involved: a) all relevant evidence should be made available; and b) communication between a client and his lawyer should be allowed to remain confidential. It held that public interest was best served by confining the privilege within narrow limits. A document was therefore only privileged from production on the basis of the legal professional privilege if the dominant purpose for which it was prepared was that of submitting it for advice. Since the purpose for the report was for advice and legal use was merely subsidiary, the House of Lords held that the Board‘s claim would fail.

b) Conflicts between duties to the client and the public: Lord Reid in Rondel v. Worseley,140 held, “an advocate has a duty to be fair, fair to the Court and fair to the public. So important is fairness to the Court and the public that the public duty prevails over the duty to the client if there is a conflict.

c) Conflicts between an advocate's interests and a duty to a client: An advocate/client conflict may arise if an advocate's personal interests conflict with his or her duties to the client forcing him or her to choose between the two. When such happens, in the interest of justice, it is important that an advocate remains independent in judgment, loyal and objective at all material times during the subsistence of a client-advocate relationship. Professional ethics rules require an advocate to decline instructions where there is a possibility of his/her independence being interfered with. The general principle espoused in Blackwell's case141 in terms of competing loyalties to different clients is readily transferred to situations where advocates borrow from a client or have business dealings with a client and fail to make adequate disclosure to the client, or fail to arrange for the client to receive independent advice. A good example is Law Society of New South Wales v. Harvey142 where the defendant was a solicitor who was also a director and shareholder in three companies in the business of property investment. Over a period of years, clients of the defendant lent money to the companies at the suggestion of the defendant. The investments undertaken by the companies were of very high risk and the clients stood to lose substantially in the event of failure. In some instances, a client was only informed that his/her money had been lent to the companies after the dealings had occurred. The investments turned bad and the clients lost their money. The issue on appeal was whether the professional misconduct of the defendant was serious enough to warrant him being struck off from the Roll of Solicitors. Street C.J. held that, “where there is any conflict between the interests of the client and that of the solicitor, the duty of the solicitor is to act in perfect good faith and to make full disclosure of his interest … which might influence the conduct of the client or anybody from whom he might seek advice A solicitor who

constantly promotes dealings with various clients clearly misuses his position, and puts it beyond his capacity to observe his primary duty to his clients. The price of being a member of an honourable profession, whose duty to his client ought not to be prejudiced in any degree, is that a solicitor is denied the freedom to take the benefit of any opportunity to deal with persons whom he has accepted as clients. Therefore, he ought neither to promote, suggest nor encourage a client to deal with him but, rather should take all reasonable steps positively to avoid dealing directly, or indirectly, with his client

… . The defendant's professional misconduct was serious and sustained involving many clients and large amounts of money. His conduct was motivated by greed and self interest in deliberate and flagrant disregard of his duty to his clients, and demonstrates that he is unfitted to be a solicitor, or to be employed in a solicitor's office in any capacity, and that his name should be removed from the Roll of Solicitors.”

d) Conflicts between duties owed to two or more clients: In a contentious matter,143 an advocate should not represent two or more clients whose interests may conflict. There are two types of client conflicts i.e.., existing client conflicts and former client conflicts. In Commonwealth Bank of Australia v. Smith,144 that, “various Courts in a number of jurisdictions have decried the practice of the one solicitor acting for both vendor and purchaser It is an undesirable practice and it ought not to be permitted

… and it does not seem to make any difference if one member of a firm deals with one client and another member of the same firm deals with the other client.

In 1994 in Blackwell v. Barolle Ptv. Ltd.,145 it was held that, “a firm is in no better position than a sole practitioner if it purports to act for separate clients whose interest are in contention. If it purports to continue to act for both clients by imposing a qualification on the duties of partnership it thereby denies the respective clients the services the clients have sought from the firm, namely, the delivery of such professional skill and advice as the partnership is able to provide. In such a circumstance the appearance provided to the public is that the interest of the solicitors as partners is in conflict with and may be preferred to the interest of one or both clients.”

In regard to former client conflicts, an advocate may receive confidential information from clients during the course of their representation. The advocate owes those clients a duty of confidentiality in respect of the information. This duty continues even if the advocate is no longer acting for the clients. To overcome the possibility of compromising the confidences of the former client, firms have adopted mechanisms such as the quarantining of the former client's information. This mechanism is sometimes referred to as ‘Chinese wall.’

The common law position concerning the test for disqualification on the basis of a conflict of interest involving a former client was whether there was a reasonable probability of real mischief. However, in the case of Prince Jefri Bolkiah v. KPMG (a firm),146 the House of Lords adopted a stricter test and held: “the Court should intervene unless it is satisfied that there is no risk of disclosure. … [T]he risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial [N]o

solicitor should, without the consent of his former client, accept instructions unless, viewed objectively, his doing so will not increase the risk that information which is confidential to the former client may come into the possession of a party with an adverse interest.

In King Woolen Mills Ltd. v. Kaplan & Stratton Advocates,147 a dispute arose as to the validity of security documents prepared by the defendants. The Court of Appeal held that, “the fiduciary relationship created by the retainer between client and an advocate demands that the knowledge acquired by an advocate while acting for the client be treated as confidential and should not be disclosed to anyone else without the client’s consent. That fiduciary relationship exists even after conclusion of the matter for which the retainer was created.” In the case therefore, the Court restrained the firm of advocates from continuing to act against its former client.

9. FORMS OF CONFLICT OF INTEREST:

a) Simultaneous representation: An advocate may not represent two clients who are adversaries in a case.

b) Issue conflicts: An advocate representing two clients in different cases and urging a legal position of one which will have negative consequences for another if the cases are pending in the same Court.

c) Successive representation: This occurs when an advocate represents a client in a matter which may be adverse to a former client. This is where matters of the former and current clients are related in some way and an advocate would risk breaching confidentiality to represent the current client. Generally, advocate-client confidentiality goes beyond completion of a Court case. It is infinite. In Simba Hills Farm Ltd v. Sultan Hasham Lalji & 5 Others, there was an application for the disqualification or barring of an advocate and the advocate's firm from conducting a suit on the ground that the advocate for the plaintiff, Mr. Birech of Birech & Company Advocates had previously acted for the 3rd and 4th defendants. It was held that there was indeed conflict of interest and Mr. Birech could not be allowed to act for the plaintiff as it was possible that as former counsel for the said defendants, he could have come across some knowledge that would be prejudicial to the defendants.

d) Expected witness: When it is expected that an advocate will be called as a witness in a case before the Court, then the concerned advocate may be disqualified from acting in the matter. This is to protect the client’s interest because of the probability that the testimony could harm his client’s case.

10. CONCLUSIONS:

An advocate has a great responsibility towards the preservation of the society and justice system. S/he is thus expected to act with utmost sincerity and respect and more importantly, uphold the rule of law by conforming to the requirements of the law.

An advocate's duty to the Court, client, opponent, etc., generally touches upon nearly every aspect of his or her practice. Yet, beyond the most obvious cases, determining when duties to the client are secondary to those owed to the Court may not always be crystal clear. These are difficulties that may face advocates when duties conflict but also to provide guidance to practitioners when similar situations arise. The hope is that advocates will be better prepared to address them equipped with a fuller understanding of their duty to the Court, client, opponent, etc.

JUDICIAL DISQUALIFICATION/RECUSAL OF A JUDGE

1. INTRODUCTION:

· Judges form the core of any justice system. Their independence and impartiality impacts on the perceptions of the common citizenry with regard to success or failure of the judiciary.

· As a general rule, a Judges is required to disqualify him/herself from hearing a case when his/her impartiality may reasonably be called into question.

· Chief Justice Hewart held that the core reason leading to recusal is that:

“… justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

· The rule on disqualification of a judge originates from Common Law rules where it was a settled rule that if a judge had pecuniary interest in a case he was disqualified from sitting in that case.1

· Judicial disqualification or recusal refers to the act of abstaining from participation in an official action such as legal proceedings due to prejudice or conflict of interest of the Presiding Court Official.

2. FORMS OF RECUSAL:

a) Voluntary recusal: It is moral and ethical for a Judge to disqualify him/herself in proceedings where his/her impartiality might reasonably be questioned.2

b) Recusal on application by a party: In a number of cases some judges will not disclose that they have an interest and/or refuse to step down. Trial lawyers are thus faced with the circumstances that require them to ask a sitting judicial officer to recuse him/herself.

3. GROUNDS FOR RECUSAL: Frivolous or vexatious applications for recusal should generally be avoided. Such applications should be in pursuit of the course of justice. Accordingly, recusal is only resulted to if a Judge:

a) has a personal interest in the outcome of the case;

b) has a family member or close relative who is a party to the case. In 2017, Justice Odunga disqualified himself from the Ballot Paper case after it was alleged that he is related to James Orengo through marriage. Odunga is married to Sara Odunga, a niece to Orengo;

c) has more than a minimal/nominal financial interest in the outcome of the case;

d) has a close social relationship with a litigant, lawyer, or witness in the case;

e) was previously a lawyer on the same or a related case or was associated with the lawyers on the case or a related case;

f) previously acted for one of the parties to the suit;

g) has been a material/potential witness on the case or a related case;

h) has prior personal knowledge of disputed facts in the case;

i) is directly or indirectly party to the suit;

j) has dealt with the matter previously e.g., at trial and then at appeal level;

k) has already expressed opinion relating either to the specific case, or another case relating to the same parties, or another based on the same subject matter;

l) was previously a partner to one of the advocates‘ firms;

m) has personal animosity against a party to the case;


1 James Bleil and Carol King, Focus on Judicial Recusal: A Clearing Picture, 25 Tex. Tech L. Rev. 773, 775, 1994.

2 Rule 5, the Judicial Service Code of Conduct and Ethics. Some of the salient features under the Code include Independence, Impartiality, Integrity, Propriety, Equality, Competence and Diligence.


n) or a Judge‘s spouse, or someone within the third degree of relationship to either Judge or spouse is: i) a party or officer, etc., of a party, ii) a lawyer in the case, iii) known by the Judge to have an interest that could be substantially affected, or iv) known by the Judge to likely be a material witness.

o) In other jurisdictions where the Judge is elected i.e., in USA, a ground of recusal may include where the Judge's campaign coordinator or campaign committee member is a party or lawyer in the case;

p) Any other reason that may give likelihood of impartiality i.e., in Philip Moi case, G. B. M. Kariuki J. was asked to recuse himself on the ground that, while the Judge was the Chair of LSK, he had a lot of political run-ins with the then President Moi, father to Philip Moi.

4. PROVISIONS UNDER THE ROME STATUTE:

· Article 41 of the Rome Statute of the International Criminal Court, 1998 provides that:

a) the Presidency may, at the request of a Judge, excuse that Judge from the exercise of a function under the Statute, but in accordance with the Rules of Procedure and Evidence.

b) a Judge should not participate in any case in which his or her impartiality may reasonably be doubted on any ground.

c) A Judge is disqualified from a case if s/he has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted;

d) a Prosecutor, or the person being investigated or prosecuted may request the disqualification of a Judge;

e) any question as to the disqualification of a Judge is decided by an absolute majority of the Judges and the challenged Judge is entitled to present his or her comments on the matter, but cannot take part in the decision.

5. PROCEDURE FOR MAKING AN APPLICATION FOR RECUSAL:

i. Informing the Judge in Chambers: In South Africa Rugby Football Union Case,3 An advocate seeking a Judge to recuse him/herself should first inform the Judge in his/her Chambers in the presence of the opponent before making the application in open Court. This helps the litigant to avoid rushing to Court at the risk of maligning the integrity of a Judge and of the Court as a whole without having the full facts of the allegation. The grounds for recusal are put to the Judge who would be given an opportunity, if sought, to respond to them. In the event of the recusal being rejected by the concerned Judge, the applicant would then move the application in an open Court. However, the applicant must establish that bias is not a mere figment of his imagination.

ii. Oral application: If there exists a conflict of interest i.e., where it is noted that a judicial officer presiding over a matter was previously an advocate in the matter, an application can be made orally in the Court.

iii. Formal application: This is done by a Notice of Motion in Court accompanied by an Affidavit and the relevant evidence. Such an application is made with the support of provisions relating to the:

a) Article 25 (c) which provides that the right to fair hearing cannot be limited;

b) contravention of fundamental rights and freedoms particularly, the right to a fair hearing as provided for under Article 50 of the Constitution of Kenya, 2010;

c) Protection of Fundamental Rights and Freedoms of the Individual Practice and Procedure Rules, 2013.

iv. If dissatisfied: with an officer’s refusal to recuse him/herself, an appeal is can be made.

6. LEGISLATIVE FRAMEWORK IN KENYA:

· There is no express provision relating to disqualification of judicial officers. This lacuna in the law has therefore been remedied through judicial prescription.

· Fair hearing: Article 50(1) of the Constitution of Kenya, 2010 provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body.

· Conduct of State officers: Article 75(1) (a) and (b) and Article 232(1) (a) of the Constitution sets out high standards of professional ethics for public officers.

· Avoid personal interest conflicts: Section 12 of the Public Officers Ethics Act, 2003 provides that a Public Officer is to use his best efforts to avoid being in a position in which s/he has personal interests conflict with his official duties. A Public Officer faced with a conflict of interest shall declare the personal interest to his superiors or other appropriate body and comply with the directions to avoid the conflict and refrain from participating in any deliberations with respect to that matter.

· The Judicial Service Code of Conduct and Ethics: made by the Judicial Service Commission pursuant to Section 5(1) of the Public Officer Ethics Act, 2003 also contains general rules of conduct and ethics to be observed by judicial officers so as to maintain integrity and independence of judicial service i.e.,

a) Rule 5 requires a judicial officer to disqualify him/herself in proceedings where his/her impartiality might reasonably be questioned including but not limited to instances in which he has a personal bias or prejudice concerning a party or his advocate or personal knowledge of facts in the proceedings before him.

b) Rule 10(1) requires Judges of the Superior Courts as public officers to carry out their duties in accordance with the law.

7. JUDICIAL GUIDELINES:

· Generally, Judge-Made Laws begins where legislative prescription has failed and seeks to seal any vacuum created thereof. The case of judicial disqualification is a good example where Kenyan Courts have stepped into the shoes of the lawmakers to provide for principles that govern judicial recusal.

· One of the most conclusive authorities in recusal is the case of Homepark Caterers v. Attorney General, J. A. Ojwang & 2 Others,4 relating to Hon. Justice Ojwang who was the Presiding Hudge in HCC No. 83/03. In the instant case, the petitioner relied on a Draft Bill on HIV and AIDS that had been prepared by a Task Force where the Judge in question was one of the consultants. The contention of the petitioner contended that the Judge may have had certain dispositions and inclinations to certain issues that were dealt by the Task Force and could therefore not receive a fair hearing. The case was first brought by way of an Originating Summons under Section 77(9) of the repealed Constitution, Rules 11, 12 and 13 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 before being allowed to be a full hearing. After an exhaustive analysis of judicial authorities within and without Kenya, the Court adopted 10 benchmarks as set out in Locabail (UK) Ltd v. Bayfield Properties Ltd.;5

a) In any case of automatic disqualification on the authority of Dimes and Pinochet cases, a Judge should recuse himself from the case before any objection is raised.

b) Where a Judge feels embarrassed hearing a case, s/he can recuse him/herself.

c) It is highly desirable, if extra cost, delay or inconvenience is avoided by the judge recusing himself at the earliest stage before the eve of the day of hearing.

d) Parties should not be confronted with a last minute choice between adjournment after a valid objection.

e) In any case not giving rise to automatic disqualification or personal embarrassment, where a Judge becomes aware of any matter that could arguably give rise to a real danger of bias, it is desirable for disclosure to be made to the parties in advance of hearing. If an objection is made, it is the duty of the Judge to consider it and exercise his judgment upon it.

f) A Judge would be wrong to yield to tenuous or frivolous objection, same would be the case for ignoring an objection of substance.

g) Where the facts of a case lead to apprehension of reasonable suspicion test, the Court adopted the principle set out in the Constitutional Court of South Africa in The President of the Republic of South Africa v. South African Rugby Football Union.6 The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.

h) In Re JRL exp CJL Re,7 the Australian High Court observed that although justice should be seen to be done, the judicial officers, by ceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking disqualification of a Judge, they would have someone who would decide their case in their favour.

i) In Re Ebner v. Official Trustee in Bankruptcy,8 where the Australian Federal Court asked the question why it should be assumed that the confidence of fair minded people on the administration of justice is to be shaken by existence of a pecuniary interest of no tangible value but not the wastage of resources and delays caused by setting aside judgment on the ground that the judge is disqualified for having an interest.

j) As observed by Callaway J. A., a Judge should not accede to unfounded disqualification applications.9

k) The Court further observed that where a judicial officer is challenged for possible bias, the challenge assumes a higher dimension in that it is a collateral attack on the administration of justice as a whole and ceases to be a personal affair to the judicial officer.

· In Kaplan & Stratton v. L. Z. Engineering Construction Ltd. and Others,10 an application was made for the disqualification of the Presiding Judge, Lakha J., claiming it unwise for the Judge to have had two luncheons with Mr. Esmail, advocate for the first respondent. The Court concluded that:

a) there is automatic disqualification for any Judge who has direct pecuniary or proprietary interest with a party or is otherwise closely connected with a party since, ‘no-one should be a judge in his own cause’;

b) if an allegation of bias is made, it is for the Court to determine whether there is a real danger of bias in the sense that the Judge might have unfairly regarded with favour or disfavor the case of a party under consideration by him or, might be prejudiced against one party‘s case for reasons unconnected with the merits of the issues;

c) surmise, conjecture or suspicion is not enough for recusal;

d) personal knowledge of counsel does not disqualify a Judge, otherwise there would be few Judges who would not be disqualified.

· Similarly, in Philip K. Tunoi & Another v. Judicial Service Commision & Another,11 the applicants, the Justice Philip Tunoi and Justice David Onyancha, through Notice of Motion, sought the recusal of the Presiding Judge, Justice G. B. Kariuki, and Justice Milton Asike from hearing the appeal filed in the Court of Appeal on the ground that the Presiding Judge, Justice G.B. Kariuki, was convicted of contempt of Court and fined Kshs.500,000 in the Court of Appeal by a Bench including the Hon. Mr. Justice Tunoi and that the Attorney General as a member of JSC had held an extremely partisan position regarding their matter and had regularly discussed the matter with Justice Milton Asike. The Court however held that the application lacked merit as there was no evidence of circumstances that gave rise to prejudice or jaundiced view on the part of the Judges.

· The same issue has also arisen in the East African Court of Justice (EACJ) in the case of in Attorney General of the Republic of Kenya v. Prof. Anyang’ Nyong’o and 10 Others.12 On 6th February 2007, the Government of Kenya (GOK) was upbraided publicly for attempting to force two Kenyan Judges (Moijo Ole Keiwua and Kasanga Mulwa) to step down from hearing a case relating to the nomination of Members to the East African Legislative Assembly. The GOK alleged that they failed to disclose to parties the material fact of their relation to the Republic of Kenya in a manner which rendered them impossible for them to give a hearing to the 1st respondent. The EACJ:

a) rejected the GOK application for disqualification of the President of the EACJ, Kenyan Justice Moijo Ole Keiwua and for the Government to issue an apology to the Judge for falsely pleading that he was suspended from the Kenyan High Court and was facing investigation for corruption;

b) rejected an application by the GOK to set aside a 27th November 2006 ruling which stopped the swearing in of the East African Legislative Assembly members nominated by the GOK. In a fit of pique, the same Government had, while reserving its legal appeals against the EACJ ruling, attempted to change the Treaty that established the EACJ;

c) accused the Attorney General of Kenya of bringing the recusal applications against the two Kenyan Judges and held that it was a time-wasting ruse in order to allow the Kenyan Government to amend the Treaty to its desired ends and to ensure that the applicant does not receive a fair hearing;

d) observed that where a recusal application comes before a Court constituted by several Judges, subject to the judge whose recusal is sought giving his individual decision on the matter, all the Judges constituting coram for the case have a collective duty to determine if there is sufficient ground for the Judge to recuse himself from further participation from the case;

e) held that a litigant who has knowledge of the facts that give rise to the real danger of bias ought not be permitted to keep his objection until he finds out that he has not succeeded;

f) came to the conclusion that the ‘objective test of reasonable apprehension of bias’ is a good law and set the parameter of the test as: Does the circumstances give rise to a reasonable apprehension in view of a reasonable, fair-minded and informed member of the public that the Judge will not impartially apply his mind to the case?

The issue in this case was whether the two Judges were to recuse themselves before hearing the interlocutory application and if that was the case, then the consequent order should have been set aside.


1. INTRODUCTION:


COURT ETIQUETTE

· Advocates are required to always act in accordance with the rules of etiquettes laid down by the Court in which they appear. Failure to do so would result in contempt of Court.

2. SOURCES OF COURT ETIQUETTE: 

They are:

a) Long practices.

b) Practice manuals of the High Court, and

c) Rules of conduct of the legal profession.

3. COURT ETIQUETTE:

a) Dressing: The manner of dressing of an advocate should reflect sobriety and dignity. The appropriate Court dress is dark coloured suits or dresses (black, dark grey, blue).

Female advocates are expected to wear a gown with a plain dark coloured dresses (black, dark grey/blue), high to the neck with long-sleeves.13 If she wears a wig, the same should cover and conceal her hair. The dress is accompanied by plain white shirt and high collars. The rationale behind this is to promote maximum concentration/ avoid distractions.

Male advocates should wear a gown with dark coloured suit (black, dark grey/blue) or very dark jacket with grey striped trouser and black or brown shoes.14 Their shirt must be plain white and that is for appearances in an open Court. For Chamber appearances, before Magistrates and Tribunals, they should dress up in dignified attire.

Ties-Loud ties or ties with cartoon characters may be improper. Shoes should be clean, shirt collar buttons fastened. Robe, whenever required should be uncreased, of suitable size, be in good state of repair. There is no requirement for robbing when an advocate is appearing in Chambers or before a Magistrate. For the witnesses attending Court, they must be smart and conservative. The Code of Standards of Professional Practice and Ethical Conduct, June 2016 also provides that the Standard also extends the Advocate’s mode of dressing when in public. As such, an advocate is under a duty to dress modestly and in a manner that lends him/herself to the dignity of the legal profession. Where an issue arises regarding the appropriateness of the dressing of an advocate, whether male or female, regard is to the extent of compliance by the advocate with the Advocates Dress Code issued by the Law Society of Kenya. The Code is not exhaustive and must be complimented with common sense.15 Repeated failure to adhere to the dress code without adequate reason can undermine the standing of an advocate in the eyes of the public.16

When the Advocates Dress Code was revised in January of 2013, it generated criticism. In Andrew Barley Khakula v. Law Society of Kenya and Anor, 17 Advocate Andrew Barley, the Petitioner sought orders that the Law Society of Kenya Dress Code was unconstitutional on the basis that it violated Article 27(4)18 of the Constitution. Justice Majanja, for the High Court, dismissed the suit and held that the petitioner had failed to demonstrate how the new Dress Code had infringed on his personal rights and fundamental freedoms.

b) Duty to be well groomed: Dressing and proper grooming ensures that whatever message an advocate conveys dignifies the legal profession at large.

c) Punctuality: Better an hour too early than a minute too late! An advocate should attend Court early at least 30 minutes before starting time. Lateness without proper explanation, especially if repeated may amount to contempt of Court.

d) Introductions: In practice, the Judge/Magistrate introduces him/herself first then the Court Clerk, then Senior Counsel and lastly Junior Counsels. The best practice is to let Senior Counsels should introduce Junior Counsels. There is no need to reintroduce oneself for each new case but may need to reintroduce oneself s/he has not been in that Court for a long time and especially where the Judge/Magistrate cannot remember one or is new in the station. It is also essential to attend chambers in company of an opponent or his/her advocate. At the chambers, await invitation to sit down. Where an advocate has not met before Court officials (i.e., clerk, orderly and interpreter), s/he should self.

e) Behaviour in Court: An advocate should also avoid showing too much on his face i.e., avoid making unnecessary expressions, glee (be happy) when s/he scores a point or make horrified face when s/he loses a point. Such body language may be too expressive and even dangerous.

i. On entry of Judge or Magistrate, and clerk announcing “all rise” or knocks on door, all should rise. All in Court should bow slightly and wait for Judge/Magistrate to sit down first. Bowing is restricted to members of the bar and is a show of courtesy and respect to the professional colleagues on the Bench.

ii. On exit: It is the same procedure in reverse (Judge/Magistrate rises and all bow) and allow the Judicial officers to leave before sitting or leaving.

iii. While Court is in session:

· Entry: Silently walk in, bow, find a place to stand or sit.

· Exit: Rise quietly, move to back, bow, leave quietly.

· If an advocate is to pass a note, avoid it as it causes distraction.

· If trial is in session and an advocate wishes to confer with a client, s/he should seek Court’s permission and if discussion will be long, a brief adjournment should be sought.

· An advocate should not whisper.

· After intervention by the Court i.e., during cross-examination, an advocate must permission of the Court before proceeding.

· Avoid unnecessary movement.

· An advocate should always stand every time s/he is being addressed by the Judge.

· Only one of the counsels on opposite sides should stand, at a time, to address the Court.

· If a Judge is addressing both counsels, both should stand.

· Where an advocate does not agree with the Judge, s/he should address the issue with utmost respect in order to save the face of the Court and the judicial system at large.

· After delivery of a ruling, both should stand and say, “most obliged” or “thank you, your honour.”

f) Witnesses: A witnesses should:

i. be advised to look at an advocate when s/he is being questioned and look at the Judge/Magistrate when answering;

ii. wait outside if s/he is not testifying, but away from earshot of the proceedings;

iii. be punctual when called;

iv. avoid distracters i.e., phones, wearing too many clothing and accessories;

v. after testifying, either remain in Court silently or go away completely;

vi. never be referred to as an “accused.”

When cross examining witnesses, an advocate should take note of the following:

i. Never put words into the mouth of your own witness: S/he should stick only to what the witness said. When examining own witness, an advocate should ask everything s/he needs to establish a case theory. Never leave anything hanging. This will backfire should the opposing counsel choose not to cross-examine the witness.

ii. Confrontation technique: This is employed where the witness is in the opinion of the advocate not reliable, not honest or is a liar. Confrontation in putting questions to the witness and showing the witness documents contrary to what the witness is advancing. Besides, when cross-examining a witness who is not very intelligent, it is a tactic to scare a witness into revealing everything that s/he knows.

iii. Insinuation: This is adopted in cases where the witness is basically honest and accurate, polished, intelligent, one who appears to know what s/he is saying and cannot be shaken by confrontation. As such, an advocate has to be gentle with the witness and may adopt the technique of insinuating that what s/he is telling the Court is not the whole truth or maybe s/he cannot remember everything.

iv. Undermining: This is used in witnesses who are experts, their testimony is normally regarded as expert evidence and a lot of reliance is given to such evidence so, one needs to probe to get more and undermine the testimony tendered by the witness. This is mainly by looking out for weaknesses in the reports presented i.e., failure to observe certain procedures that are required.

v. Do not be seen to be in too friendly a relationship with your opponent: This is particularly important in Courts where an advocate knows the opponent very well. Even if the advocates are greatest friends outside the courtroom, it should be concealed in the courtroom.

vi. Principles relating to counsel conducting his own case: An advocate cannot claim to represent him/herself in a matter. If one is an advocate and a suspect in a criminal case charged jointly with someone else, such advocate cannot purport to be a counsel for the co-accused. Moreover, where an advocate is also a party in a matter before the Court and he is represented by a Counsel, s/he should not appear like he is an advocate or conduct himself as such.

g) Court terminology: These include: Appear, Submit, Most obliged, If it may please the Court, With all due respect, My instructions are, I withdraw, My learned friend/colleague, When quoting judgments-”Say “His Lordship” (avoid-”Your brother”), Adjournment, Termination, Remand, Standing down.

h) Perception of bias: “Justice must not only be done but also be seen to be done”19 Areas of misunderstanding by client should be avoided by:

i. familiarizing with the prosecutor or advocate of the opponent;

ii. maintaining the professional distance;

iii. referring by professional title, not personal name;

iv. not discussing social matters with a Judge/Magistrate while in chambers in company of opponent.

i) Humour in Court: An advocate should avoid humour in trial, especially during a criminal trial as it may be perceived as trivializing a serious matter. Besides, an advocate should avoid humour attempts at a Judge.

j) Honesty: Advocates must be honest as they represent their clients in Court. As such they must disclose all material facts of their case to the fact finder without leaving any evidence that they deem unfavourable to their cases.

k) Respect the rules of the Court: Court etiquette rules dictate that advocates should:

i. switch off their cell phones to avoid interrupting Court proceedings;

ii. bow when entering and exiting the Court room to acknowledge the presence of a Judge;

iii. minimise disruptions in the Court.

l) Not to waste judicial time: An advocate is also required to:

i. avoid filing or pursuing tactics designed solely to harass the other side;

ii. acknowledge where a case lacks legal substance or conceivable defense instead of putting up an empty spirited argument for the sake of impressing the client;

iii. desist from filing and arguing frivolous, vexatious and scandalous suits.

m) Mode of address: Address judicial officers as follows:

i. Magistrates, High Court, Industrial Court/ELC and Supreme Court Judges – “Your Honour”

ii. Court of Appeal Judges – “My Lord(s), My Lady; Your Lordship(s), Your Ladyship(s)”

iii. Mixed Bench Judges: “My Lords, My Lady.”

iv. For Judges/Magistrates among themselves, they refer to their peers as “my brother/sister Judge…”

v. Fellow counsels – “my learned friend.” The word ‘Learned’ is also used to refer to Judges and Magistrates i.e., the ‘Learned Magistrate’ or ‘Learned Judge’ particularly on appeal when one is preparing Memorandum of Appeal attacking the decision of a lower Court i.e., “Learned Magistrate erred in…”

vi. For a judicial officer heading a tribunal - if it is a Magistrate or Judge he should be addressed normally as “Your honour or My Lord.” But if the person is not a judicial officer s/he should be addressed simply as “Mr. Chairman, the Chair, or Chairlady or simply Sir or Madam.”

The rules require that a Judge should never be referred to as ‘him’ or ‘her’ and it has to be “her Ladyship or his Lordship.” To avoid getting confused by the use of these terms, it is advisable to refer to the Court as “I inform the Court that...”

n) Manner of addressing the Court: When an advocate is addressing the Court, s/he should:

i. stand straight, avoid leaning on the table or putting hands in pockets;

ii. sit down whenever a colleague stands to address the Court either in objection or interjection. It is not good professional manners for two advocates to be on their feet at the same time;

iii. accord the opposing side time to make their submissions;

iv. make a habit of thanking the Court even when disagreeing with the Court.

v. never ever interrupt a Judge.

vi. avoid asking the court a direct question i.e., an advocate may want the Court to adjourn the matter, but s/he cannot just stand and say “can we adjourn now?”

vii. never abandon the Judge who is sitting in open Court and particularly a robbed Judge. If an advocate finds out that he is the last advocate sitting in Court, he should not just get up and leave. He has to wait for the Judge to leave first. This is called ‘dressing the Court’ meant to keep the colleague on the Bench company. If advocate must leave, courtesy requires that he seeks Court’s permission to leave.

o) Language of addressing the Court: An advocate should always:

i. use polite language;

ii. stick to the formal language;

iii. avoid slang or colloquial language;

iv. avoid abbreviations it does not reflect seriousness on ones part and it is not dignified.

DIMENSIONS, RULES AND PSYCHOLOGY OF ADVOCACY

1. INTRODUCTION:

Newly admitted advocates look forward to represent clients in the Courts of law. They however, have to familiarize themselves with the formal and non-formal rules of advocacy that govern the courtroom process. The non-formal rules commonly referred to as the ‘Golden Rules of Advocacy’ generally encompass the dimensions, rules and the psychology of advocacy which are subject to analysis hereunder:

2. DIMENSIONS OF ADVOCACY:

Dimensions of advocacy, a key element in trial advocacy, deals with four informal rules that generally contribute in facilitating an advocate’s role in the Court more effective. These include:

a) Trial is not an exercise to discover the truth but, to persuade arrival at a certain opinion: The fact-finder/Judge is not being asked to unearth the truth. As an umpire, s/he rarely questions (adversarial system). Advocates should therefore try to persuade the fact-finder to arrive at an opinion in his/her favour. However, this is not a licence to be dishonest.

b) Human animal is more video than audio: From psychology of communication: 60% of a message is conveyed by body language and visual appearance.

30% conveyed by tone of a voice. 10% through words.

Only 10% of what is heard is remembered and if a person sees something connected with what s/he hears, s/he will remember 50% of the message conveyed.

Disintegrating, torn, shabby clothing, impression of friendship with opponent generally speak about an advocate to a client’s disadvantage. An advocate should:

i. appear sincere at all times;

ii. not convey an unintended visual signal;

iii. ensure the fact-finder always has something to look at;

iv. use visual aids i.e., plans, photographs, enlarged portions of paragraphs;

v. maintain eye contact with fact finder but should not overdo it.

The following are some of non-verbal cues applicable in trial advocacy: An advocate should:

i. dress Appropriately

ii. not be seen to in too friendly a relationship with your opponent;

iii. not laugh, smile or joke without including the Tribunal/Court: A failed joke is embarrassing and annoying and can destroy your case or other chances thus one should avoid making unnecessary jokes.

iv. appear at all times to be absolutely sincere;

v. use of appropriate tone i.e., not too high and not too low;

vi. ensure his/her body posture is right before, during and after courtroom;

c) People do not like lawyers: This is in the sense that when one is representing a criminal, not many people will understand why one is representing a murderer. Lawyers have thus over time borne the brunt of coarse jokes. They are therefore required to stick to the truth and should not appear to be manipulative. Besides, they should use simple, plain language.

d) Time: It is important for an advocate to be in Court on time, because being late can cause inconvenience and waste time for the Court. Being late projects a lack of respect for the Court and leaves an impression that a person is irresponsible and unprofessional. The Court should not have to be sitting idle, waiting for an advocate to arrive at their convenience. This apart, listening for so long (i.e., more than 5 hours) to a boring lawyer can be a torment. All players in a suit have things to do i.e., an expert witnesses and other witnesses have their occupations, a Judge has rulings and judgments to write and the prosecutor has other cases to attend to. A client and advocate should therefore be concise and not to repeat self as that is a secret weapon.

3. RULES OF ADVOCACY:

The following are the rules of advocacy, an advocate should:

a) not express his/her personal opinion in the Court: S/he should remember that ‘it’s a client’s case and not his/her case.’ The ‘Cab rank rule’ was devised to avoid people finding no one to represent them. S/he should avoid words like “I think” or “I believe” and instead use words like, “The evidence shows …”, “From the testimony of …”, “It has been found that ...”, “Experience has shown that …” “All reasonable indications point to …”, “Subjected to the test of a reasonable man …”

b) not testify from the bar: S/he should remember that giving evidence from the bar makes one liable to being cross-examined on it. Therefore, an advocate should not use words like, “My client personally told me …” In an opening statement s/he should say, “We will lead evidence… or, the evidence will show…” and in submissions, “It came out in evidence … or, the evidence tendered showed…”

c) speak in submissions only of what was touched on in evidence: S/he should may refer to what can be taken judicial notice of, such as: documented state of the environment, or commonly used Biblical and English literature expressions.

d) not “put it to” the witness: This is taken from English practice of “putting across” to the witness one’s version of events. This can rather be accomplished through cross examination i.e., on self defence issue, an asvocate should ask questions that show a build up to a state where accused will show that s/he was actually acting in self defence.

e) never put words into your witness’ mouth: During examination-in-chief, an advocate should not ask leading questions. The evidence should always come from a witness. Putting words in a witness’ mouth closes out giving of detailed evidence.

f) never refer to a criminal record (unless it was brought up or was likely to be brought up): S/he should remember:

i. the doctrine of presumption of innocence;

ii. constitutional protection against self incriminating evidence.

Reference of a criminal record may however be resorted to if it is relevant to the trial and an advocate finds it better to minimise its negative impact by bringing it out first.

4. PSYCHOLOGY OF ADVOCACY:

Since fact finders are human, the process of arriving at an opinion by them generally involves both “thinking” and “feeling.” An advocate should therefore remember the following:

a) Fragility of advocacy materials: In speaking, an advocate should try to lead the fact-finder along the garden path of the theory of a client’s case.

b) Being likeable: We all have a nice side. Take this nice side to court. Take the real human being to court, not the grim, serious, solemn, grave and pompous person. An advocate’s likeability should not be taken as a cover up.

c) Sympathy Rule: Advocates should conduct themselves in such a manner as to attract the sympathy of the fact-finder. They should never get into a confrontation with the fact finder. This is by converting a number of people previously unfamiliar with an advocate to be sympathetic to an advocate’s cause.

d) Rule of equals and opposites: S/he should remember that for every push one makes there is an equal and opposite push. As such, an advocate should invite and not to demand or, suggest and not insist.

e) First person plural: This makes the fact-finder feel included. It’s all about “We”, not “they”, “We are here for this case”, not “The Court is listening to the case in which ...”

f) Preparation: This is a crucial bit in the success of the case. When dealing with preparation, the following three pronged approach has to be taken into consideration: Analysis, Identification and Resolution. It is at this point that advocate get to analyze his/her witnesses by reviewing their statements and testimony.20 The advocate then proceeds to identify the weaknesses of each witness that will stand at the dock. The advocate must acknowledge and have an explanation for weaknesses, gaps, inconsistencies and improbabilities in his/her case.21 After identification the advocate should then proceed to resolve those issues before the adverse party capitalizes on them. In other words, an advocate should deal with weaknesses in a case beforehand, help mitigate their impact and lay the right foundation.

g) Being an honest guide: This is all about presenting a case in an honest and sincere manner. An advocate must not deceive or knowingly or recklessly mislead the Court. This is in line with his/her duty to the administration of justice. By the time the fact-finder has spent 20 minutes with an advocate, they tend to know whether an advocate is honest or trustworthy. Thus, one should:

i. not ask a fact-finder to believe the unbelievable;

ii. not be a hired gun to do anything for a price;

iii. not pretend/ignore about the weak point in a case but rather admit it and show parties how to succeed despite the weakness;

iv. not misquote evidence: An advocate should remember admissible evidence22 produced is intended to convince the Judge of alleged facts material to the case.

v. keep objections to a minimum: However, timely, appropriate objections, used judiciously assist the trial Judge in forming a view not only about the evidence but also the confidence the Judge can repose in the advocate presenting it. In deciding whether or not to object, the qualities of a good trial advocate will come into play and more particularly the following:

· Clarity of thought and language: An advocate must have clarity of thought and language so as to be able to put forward and respond to objections in a clear and logical manner the in Court.

· Confidence and courage: An advocate should put up a civilized warfare in defending or raising a trial objection rather than sit back without putting up a fair fight.

· Alertness: An advocate must be alert during trial so as to point out when to raise an objection.

· Preparedness: To be able to alleviate situations of surprise in the event that a trial objection is raised, an advocate needs to be well prepared especially by researching well.

· Professionalism: Professionalism ensures that advocates do not raise objections actuated by malice. The advocate should not raise emotions against the other or go personal. The manner and language and tone to be used in raising the objection is important. An advocate ought to rise up and politely but confidently say ‘Your honour/ Your Lordship, the counsel is leading the witness.’

· Sound judgment: It enables an advocate to make appropriate tactical decisions as to when to raise or not to raise objections, or how to respond to objections.

Accordingly, a good trial advocate seeks to answer the following questions before raising an objection:

· How does the evidence the advocate seeks to keep out impact on the case?

· Is the evidence one hopes to keep out the relevant to the case?

· Which rule of evidence does the impugned evidence offend?

· Does the objection make the Judge think I’m interfering unfairly?

h) Demonstrate competence: An advocate must demonstrate that he is capable of handling matters entrusted on him/her. S/he need to exercise the skill and knowledge obtained while undergoing training at the relevant advocates training programme. This is by referring to case law, Statute law, Regulations, etc.

i) Listening: Whenever information is being transmitted, effective listening is a very important attribute for advocates since poor listening leads to gaps, conflicts and resentment.23 Listening is not a trait but a skill which is taught, trained, improved and practiced.24 Listening generally leads to success and develops knowledge. Knowledge in turn, grants power. With power an advocate wins. An advocate may however be tempted to ask all questions. This should be avoided. It is better to get someone to take notes for one to pay attention.

j) Know when to stop: It’s natural that advocates tend to talk more than they listen. However, it is necessary for an advocate, while addressing the:

i. Court, to know when to go on, pause or stop altogether. This is meant to give the Judge sufficient time to write down an advocate’s submissions. Where an advocate speaks so fast and the Judge is not given time to put in writing his/her submissions, s/he stands to lose should the matter be appealed against as reliance will be placed on the trial record. The golden rule is thus to observe a Judge’s pen, pause after making a point until the Judge pauses from writing, then proceed with the next point;

ii. opponent counsel, to do so with decorum. This implies that an advocate should know when to pause or stop to avoid crossing the line and ending up in a verbal exchange. An advocate should as well be wary of the information s/he discloses to his/her opposing counsel to avoid disclosing client-confidential information.

iii. witnesses, to know when to pause or stop. Witnesses play a key role in the trial process as their testimonies determine the guilt of an accused person or the success of a plaintiff’s case. It is thus important for an advocate to proceed with caution while examining witnesses and avoid questions that may otherwise hurt a client’s case. During the examination-in-chief, an advocate is to ask relevant questions that flow to form a story bearing in mind that at cross-examination, an opposing counsel will seek to puncture holes into the witness’s testimony.

An advocate can know when to stop especially when one makes a wrong statement or, when realizes that s/he is lost, etc.

k) Repetition: This should be sparingly used as they are boring. S/he should be tactful in changing the end of the question i.e., “the shirt was blue?” “the shirt had a colour?”, “the shirt was not white?”

l) In submissions: At this stage, an advocate may want to emphasize a theme. Such should be spread after every sub-heading.
 

 m) Show the way home: This is by noting the objective/goal or, what an advocate wants the Court to do for him/her.

n) Remember: Decision making is difficult. Make it easier for them to make the decision.


CLIENT INTERVIEW

1. THE PURPOSE AND SCOPE OF CLIENT INTERVIEW:

Client interview is meant to:

a) form an advocate-client relationship;

b) learn the client’s goals;

c) learn as much as the client knows about the facts of the issue;

d) reduce the client’s anxiety without being unrealistic.

2. HOW TO CONDUCT A CLIENT INTERVIEW:

i. Preparation: This includes some form of communication before the interview. It may be a simple phone call or a short visit with the client. The purpose is to get a rough outline of what the case involves and allow an advocate to prepare for a substantive interview. Moreover, the initial communication with the client may serve to give you an idea of the education, legal knowledge and sophistication of the client. This will then help the advocate identify the best way of communicating with the client.

Generally, some people don’t like advocates, and only come to them because no one else can help them. In preparation, an advocate must therefore:

a) be positive in his attitude/approach to the client;

b) make a conscious decision to be as forthcoming, honest and likeable as possible during the interview;

c) think of the case and gather all information so as to be able to give the client a clear and coherent picture of the matter in dispute;

d) prepare such information as fees and other costs that may be incidental to the case;

e) be ready to discuss this at the very onset so that the client knows what s/he is getting into;

f) examine any prejudices or biases that s/he may have that may have an impact on how s/he handles the case. How strongly an advocate feels about such biases/prejudices will help him/her decide whether or not to take the case;

g) reflect on what the client expects from him. In this regard, it is important to think of the case from the client’s standpoint;

h) let the client know that s/he will do his/her best to champion the cause and get the client the best possible outcome given the facts of the case. This should be regardless of an advocate’s feelings towards the client’s case;

i) decide what basic information he needs to get from the client. This is after forming an initial opinion of the case;

j) ask the client to bring copies of any relevant documents to the case e.g., title documents in a conveyance transaction;

k) set date and time for the substantive interview with the client once s/he has identified what s/he will need for the interview. It is important to stick to the date and time agreed upon with the client and also not to schedule any other activities at the said date and time. This enables an advocate to have enough time with the client and will also go a long way in making the client feel that his case is important for the advocate.

ii. Commencing the interview: An advocate should bear in mind that, in addition, to some people disliking advocates, they find their offices intimidating. As such, an advocate should:

a) personally meet a client at the reception and walk him/her into his/her office or conference room, whichever is preferable. The way a client is received says a lot about how an advocate will handle his/her matter. However, a client should not be taken to an office with an “ego wall”- a wall that is adorned with an advocate’s achievements, photos of an advocate with celebrities, or newspaper clippings of an advocate’s success story at the first meeting. A client should be given a chance to form an impression independent of an advocate’s achievements;

b) introduce him/herself to the client. One can as well engage in some informal talk so as to break the ice;

c) take time to make a client feel comfortable before the interview starts. Thus, an advocate should ensure the room is comfortable for both the client and him/herself. A client can be offered some refreshment as a way of putting him at ease and making him feel even more comfortable at the office;

d) have a writing area/materials for taking notes.

e) prepare to have an uninterrupted interview. S/he can, for instance, ask the Secretary to hold all calls.

iii. Information gathering: This is the most important aspect of a client interview. What however counts is the type of information an advocate gets and how s/he goes about gathering it. The best way to get information is to let the client tell the story in his/her own words. An advocate should therefore:

a) ask a client to say his/her expectations from an advocate;

b) encourage a client to tell the story by letting him/her know that the rules of confidentiality extend to the initial consultation, regardless of whether a client decides to engage an advocate’s services or not;

c) listen without interrupting when a client starts to tell his/her story unless it is absolutely necessary;

d) employ active listening skills such as nodding and making eye-contact to indicate attentiveness;

e) make notes as a client speaks and mark the issues that need clarification;

f) seek clarification on anything that did not come out clearly. An advocate should avoid judgmental cross-examination and patronizing or being arrogant when seeking clarification;

g) make room for vagueness, memory lapses and lies. These are the natural responses from clients who think that they must convince the advocate of their saintliness;

h) go through the list made in preparation for the interview and make sure that s/he has got the basic information from a client required for the case;

i) summarize the told story in light of the relevant facts to ascertain that s/he understands them correctly;

j) address the client on the assessment of the case. At this point, an advocate must maintain eye contact for a client to know that what s/he is saying is very important. S/he should avoid legal jargon while speaking and take time to explain what is happening to the client;

k) go through the elements of the case with a client and bring out the legal issues that arise;

l) ask the client for documents that can support his/her case;

m) try to bring out possible defenses by asking questions that will bring out witness or alibi

information if a client is charged with a crime;

n) find out whether a client has potential character witnesses;

o) find out whether there are any possibly conflicts of interest arising, or whether what a client is asking for is illegal or unethical from the information gathered;

p) develop a case strategy from the information gathered;

q) take time to advise the client especially if s/he needs more time to clarify the law and/or to consult. S/he should therefore schedule another meeting with the client to advise him/her more authoritatively;

r) decide whether to take or not to take the case at this stage especially due to conflict of interest, lack of sufficient practice in the particular area of law that the case relates to, or it’s a difficult client, or some other sufficient reason. An advocate can decline the case orally and/or by written letter and can recommend another suitable advocate for the client;

s) let a client know the best and worst case scenario based on experiences if s/he decides to undertake the case;

t) establish trust with the client and treat him/her with respect;

u) discuss the legal fees with the client. A clear explanation on how an advocate calculates the legal fees must be given to a client. Moreover, there should be an agreement on how the same should be paid. Clients do not like to be ambushed with legal fees grossly in excess of what they expected to pay. A client should therefore be informed of what an advocate plans to do and how much it is likely to cost him/her. If possible, sign a fee agreement and secure a deposit on legal fees.

iv. Closing the interview: After gathering information, an advocate should close it. At this stage, an advocate should:

a) explain to the client what s/he plans to do based on the strategy that s/he has come up with, i.e.,

steps to take e.g., signing affidavits, depositing of Court fees, etc;

b) arrange another meeting with the client to explain the progress made and/or status of case;

3. QUESTIONS IN A CLIENT INTERVIEW:

When preparing for an interview, an advocate has to consider his information needs. To achieve this, the following need to be asked:

a) Personal information: Name, address, telephone numbers, family ties, work, age, nationality, income and health.

b) Other parties concerned: Basic personal details, advocate instructed (if any), connection with client (if any).

c) Witnesses (if relevant): Basic personal details of witnesses, connection with client.

d) The events that took place: Dates, time(s), place(s), people involved, the cause of events, people and property affected, incident which precipitated the visit to the advocate.

e) What the client wants: Identify the main problem, desired outcome, difficulties in achieving outcome, people to be affected by outcome, etc.

f) Previous advice and assistance offered to the client on the same subject matter: Anyone else consulted and details of consultant; the advice given, action taken, effects of the action.

g) Existing legal proceedings: Nature of proceedings, parties; stage of process; past or future hearing dates.

h) The raw facts and the client’s source of knowledge.

i) Questions required to prevent: Accepting a client who creates a conflict of interest, missing the deadlines espoused in the Statute limiting actions, not taking emergency actions to protect a client threatened by immediate harm.

j) All documentation relevant to the problem.

In asking the above questions, the advocate must look at the matter in the client’s perspective, that is, empathize with the client, maintain advocate-client confidentiality and set the approach to be taken in helping the client.

4. SPECIAL PROBLEMS IN CLIENT INTERVIEWS:

· Ethics in client interviews: When a client wants an advocate to assist in falsifying evidence and perpetrating illegalities so as to succeed in a case, the advocate should refrain from such requests/orders. The best approach for the advocate is to interview the client and explain the law since falsifying testimony amounts to the offence of perjury.

· Handling private or embarrassing material: In handling embarrassing or private material, an advocate should give a client time to appreciate that s/he is a person who can be entrusted by the kind of information that a client might not be willing to tell his/her friends about. Moreover, an advocate should gain the confidence of the client by stressing to the client his duty of confidentiality to the client, and the privileges of the advocate-client communication. In doing this, an advocate will obtain accurate and valuable information to any proceeding be it for litigation or alternative dispute resolution.

· Handling possible client fabrication: The main cause of fabrication is by fundamental manipulation by the client. Therefore, an advocate should explain to the client that it is in the client’s best interest to tell him the truth.

· Handling a client who wants instant prediction of a case: This problem arises out of the client’s need for assurance that the case has chances of success. The advocate should, therefore, explain to the client what work s/he will do, the issues s/he will research on, and the facts that s/he needs to investigate.

5. THE DIFFICULT CLIENT:

· At some point in an advocate’s career, s/he has to deal with difficult clients. The fact that a client is difficult should not generally deter an advocate from representing the client.

· The cab-rank rule25 provides that advocates should make legal services available to the public in an efficient and convenient way that commands respect and confidence and is compatible with the integrity and independence of the profession without discrimination, including to difficult clients.

· Clients may be difficult for any number of reasons: they may have unique behavioral traits that are exacerbated by their legal matter; others may have mental health issues.

· Advocates should be alert to indicators that a prospective client may be difficult and take steps to ensure that the “difficult” advocate-client relationship is effectively managed.

· Identifying a difficult client: Some indicators that suggest the prospective client may pose challenges for the advocate are:

a) Previous advocates: There should be an interrogation on the number advocates the client has had in the past on the same matter, outstanding accounts or unpaid accounts, any unjustifiable criticism of the advocate, description of the previous advocate as demanding; wanting calls or letters returned promptly and client not willing to oblige, etc.

b) Litigation history: An advocate should inquire whether the matter has been litigated for years, whether the client is presently representing himself or herself, whether the client will not tell you the reason why his or her previous advocate got off the record, and he is also not keen on an advocate getting in touch with the previous advocate on record regarding his case, and the level of the client’s knowledge of the case and Court process.

c) Personality traits and behavior: This is done to find out personality type of the client, the client’s feeling about the importance of the case, the client’s use of a lot of the advocate’s time and that of his/her staff. It also includes the client’s low expectations about the outcome of the matter, time it takes and unrealistic costs and his continuous failure to provide instructions. On behavior, it includes whether the client is verbally abusive to the advocate and his/her staff, or whether the client writes abusive letters to the advocate.

d) Communication in the case: A difficult client fails to respond to correspondence. Besides, the documentation/orders that the client provides in an interview are different from the information provided over the telephone and the client fails to explain the difference. In addition, the client may not be clear or coherent in his instructions.

e) Client’s ability to pay for services rendered by advocate: A difficult client might ask for concessions even when they have the ability to pay. The client might also indicate directly or indirectly to the advocate that s/he will not testify at the trial.

· Managing the difficult client: An advocate should:

a) explain his/her role and set the boundaries early on in the retainer;

b) document everything s/he possibly can, including telephone calls, voice mail messages and e-mail messages

c) have the client’s instructions in writing as confirmed by the client (also in writing);

d) include, in writing, the possible consequences of various courses of action the client may be contemplating;

e) set realistic expectations for his/her client early on in the case;

f) manage needs and expectations of the client, about service, timing, results and costs efficiently;

g) discuss the client’s difficulties with his/her staff and include his/her staff in an action plan for the client. It is important that the staff understands the risks of acting for a difficult client, so they can behave in ways that minimize those risks;

h) make sure the staff is dealing with this client the same way that the advocate is, especially in terms of documenting contacts, instructions or information;

i) ensure that the client understands the importance of openness and honesty in the advocate-client relationship;

j) be calm, patient and clear in handling the difficult client;

k) recommend counseling for the client, if possible, so as to place the client in a state of mind to discuss the matter soberly, realistically and reasonably;

6. CLIENT COUNSELING:

· The purpose of client counseling: The main goal of legal counseling is to help the client decide what to do. As advocates call it, they counsel with the goal of ‘opening up options.’ To achieve this, an advocate should:

a) not lecture to the client and leave him no room to make choices;

b) remember that the in most cases, the client knows what he wants, but needs to decide what to do;

c) put his client’s best interests first;

d) maintain confidentiality as his core;

e) not decide for the client.

· The scope of client counseling: To understand the scope of counseling, on needs to look at the common and practical problems and challenges in practice. An experienced legal counselor:

a) uses different counseling styles as appropriate and sets up a relaxing and trusting environment rely on;

b) is honest and has respect for and acceptance of a client’s need;

c) puts distance between him/herself and the client;

d) before obtaining crucial information from a client, it is sometimes imperative that an advocate deals with some underlying issues that may be related to or isolated from the issue in question.

· Can an advocate decide for the client in counseling? One of the most commonly encountered problems for advocates in the counseling process is that a client wants an advocate to make the decision for him/her as s/he is paying legal fees. In such a case an advocate can get him/herself into a professional trap. The core of client counseling is that the client must make the decisions. If an advocate makes a decision and the client acts based on it, s/he is entirely responsible for the outcome of the action. The role of the advocate is to chart out the alternatives and then make sure the client makes a fully informed and volitional decision.

· Duties to a client when counseling: In the process of counseling, an advocate owes a client duty to avoid professional malpractice.

a) Duty of care: Where there are underlying issues that are not legal, an advocate has to be very careful not to mislead the client.

b) Duty of confidentiality: A client should be at ease when giving information knowing that it will not leak to a third party. Exceptions to client confidentiality are, for instance, where the information:

i. was given and received to perpetuate a crime or fraud;

ii. is needed to prevent certain death or serious bodily harm or to establish a claim; or

iii. is for the defence of the advocate in a controversy between the advocate and the client;

iv. has resulted in a client’s perjury as stated in the case of Hunt v. Blackburn, (1888).

This duty however applies only where legal advice is sought from a professional legal adviser in his capacity as such, when the communications relating to that purpose made in confidence by the client, from disclosure by himself or by the legal adviser, except the protection be waived.

c) Duty to act in a client’s best interest: An advocate should always put the best interest of his client first. There should be no conflict of interest and where there is a conflict, an advocate should disqualify himself from acting or advising the client.

d) Duty to listen: An advocate should be a good listener. Good listening will encourage a client to give the important information that is needed by the advocate.

e) Duty not to decide for the client: Even where a client insists that the advocate should decide for him/her, the advocate should not do so. An advocate should open up options and let the client decide.

· Forms of client counseling: This includes:

a) Transactional counseling: This form of counseling relates to how to structure deals/transactions (especially commercial) with other organizations and how to conduct their affairs so as to minimize the taxes and legal liability of the organizational and individual clients.

b) Dispute resolution counseling: This includes pre-litigation where an advocate advises the client on whether a law suit or alternative dispute resolution mechanisms is necessary.

DEMAND LETTER

1. INTRODUCTION:

· The demand letter is written after taking instructions from a client.

· Demand Letter: It is a formal notice demanding that the addressee perform a legal obligation, such as rectifying a problem, paying a sum of money or honouring a contractual commitment, on specific terms and within a specified time.

· No Court proceedings: The letter gives the recipient a chance to perform the obligation without being taken to Court.

2. SCOPE OF THE DEMAND LETTER:

· It is a letter sent to the person against whom a grievance is raised.

· It is sent before the commencement of the suit.

· The letter is intended to elicit a payment or compliance from the part of the prospective defendant.

· It serves to inform the adversary of a pending claim.

· The adversary is given a time-frame within which a response is required.

· It may be written by the person seeking redress, or by a legal representative on the person’s behalf.

· A copy is made and the original sent in a way that provides proof of delivery i.e., by: a) registered mail, or b) it can be served by a registered legal clerk.

3. PURPOSE OF A DEMAND LETTER:

· It is to afford both parties an opportunity to avoid embarking on unnecessary litigation or incurring additional costs, especially within the context of overburdened judiciary and the reality of a constricted economy.

· It serves as notice to the other party, that there is an issue against them.

4. DEMAND LETTER: WHETHER MANDATORY?

· In most types of legal proceedings, especially civil suits guided by the Civil Procedure Rules, 2010, a demand letter is mandatory.

· Order 2, Rule 10(3)(b) of the Civil Procedure Rules, 2010: Particulars of pleading: Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing then, the Court may, on such terms as it thinks just, order that party to serve on any other party where he alleges notice, particulars of the notice.

· Order 3, Rule 2(d) of the Civil Procedure Rules, 2010 provides that all suits filed including suits against the Government, except small claims, must be accompanied by copies of documents to be relied on at the trial including a demand letter before action.

· Rule 53, the Advocates Remuneration Order, 1962: No advocate’s costs where suit brought without notice except on special order: If the plaintiff in any action has not given the defendant notice of his intention to sue, and the defendant pays the amount claimed or found due at or before the first hearing, no advocate’s costs shall be allowed except on a special order of the Judge or Magistrate. Thus, where a demand letter is excluded, a party may not be able to claim for costs in the suit.

5. REASONS FOR MAKING FORMAL DEMAND:

a) To avoid incurring additional costs of suit should the claim be admitted by the other party.

b) To avoid suits that may be vexatious or brought out of malice.

c) To give notice of intention to right a wrong against a legal right.

6. CONTENTS OF A DEMAND LETTER:

a) Date.

b) Authority giving the advocate to act for the claimant i.e., “I HAVE BEEN INSTRUCTED BY …”

c) Summary of the matter in issue.

d) Demand for a specific relief or payment sought.

e) Deadline by which the matter must be settled.

f) It should be addressed to the person against whom the complaint is made, or the recipient’s lawyer, or if the person has an advocate to whom s/he has donated power, to such person holding the power of attorney.

g) The term “DEMAND LETTER” stated in the body of the letter to direct the recipient to act accordingly

h) Clear intimation that payment is required. It must be of a peremptory character and unconditional.26

i) Reasonable duration to respond i.e., 7 days, where debtor resides in the same town as advocate, 10 days, where he resides in a different town in Kenya and 15 days, where he resides outside East Africa.

j) Consequences of default or non-adherence to the demand of claim.

k) Name and signature of the advocate. It is a document that is chargeable under the Advocates (Remuneration) Order, 2009 and it therefore attracts the prohibition under Sections 34 and 35 of the Advocates Act, Cap 16, i.e., it should not to be drawn by an unqualified person, or remuneration thereof accepted by an unqualified person. In Singh v. Munshi Ram27 it was held that “signing in the name of the Firm is not sufficient and not safe. It may lay the demand letter open to challenge as not being given either by the party or by an advocate as his representative on his behalf.”

l) A threat that criminal proceedings would be initiated against the debtor in event of non-payment: A demand letter should not demand from the debtor the costs of the advocate giving notice.28 There is both a statutory and professional bar to making such a demand. Rule 11 of the Advocates (Practice) Rules, 1966 provides that no advocate may request in a letter of demand before action payment from any person other than his client of any costs chargeable by him to his client in respect of such demand before action, or in respect of professional services connected with the demand. But, if subsequent to the original letter of demand, the debtor requests to be allowed to make payment of demand sum by installments, and the terms are accepted, then it is permissible to add the advocate’s costs to the principal sum owing. This must be done at the time of accepting the proposal of payment by installments. This is permissible because fresh consideration is being given by the creditor, for adding those costs to the principal amount.

m) It should contain sufficient facts that would enable the other party to understand what the case is all about. In other words, it should be long enough to convey the material facts.

n) In a defamation case, it should set out the specific words complained of and the language used in the words.

· It is important to note that the demand letter will later become highly relevant in subsequent applications and hearings in the suit, as well as to an assessment of the conduct of parties.29 Express provisions is made in the Civil Procedure Rules, 2010 for a Court to order that particulars of any notice earlier pleaded to be supplied to the opposite party.

· The demand letter should be in consonance with the plaint. In Abdulla v. Esmail30 and Jared Benson Kangwana v. Attorney-General31 it was held that where the plaint is at variance with the demand letter, particulars in explanation must be given by the plaintiff.

· After receiving the response to a demand letter, an advocate should:

a) seek the client’s opinion on the next course of action;

b) advise the client on settling the matter out of Court;

c) advise the client on the economics of going to Court.

7. ‘WITHOUT PREJUDICE’ COMMUNICATION’:

· The legal phrase “Without Prejudice” should not be written in a Demand Letter. However, in Millicent Wambui v. Nairobi Botanica Gardening Limited,32 it was held that once the person who is being claimed against responds, an advocate should quote the legal phrase “Without Prejudice” to protect the sender with regard to the contents of the letter.

· Scope of protection: The protection goes only in so far as protecting the communication between parties that genuinely attempts to resolve the disputes between the parties. Thus, the doctrine protects admissions, concessions or offers made by parties in communication.

· The words ‘without prejudice’ impose upon the communication an exclusion of use against the party making the statement in subsequent Court proceedings.

· A party making a ‘without prejudice’ offer does so on the basis that they reserve the right to assert their original position, if the offer is rejected and litigation ensues. However, the ‘without prejudice’ communication could be admissible if:

a) the issue was whether or not the negotiation resulted in an agreed settlement or whether the communication was made at all;33

b) waiver by the parties;

c) there is need to prove that there was fraud or perjury;

d) there is need to explain some delay in proceedings, especially where one of the parties seeks to have the suit dismissed.

· How to show that communication is without prejudice: The words should be inserted at the top of the correspondence. However, there is no rule that requires the words to be at the top. It can also be inferred by the conduct and can be oral.

8. WHEN DEMAND LETTER WOULD NOT BE ADVISABLE:

a) Anton Pillar Order.34

b) Mareva Injunction.35

· Initial application for the above is usually made ex parte without notice to the defendant.

· Knowledge by defendant that the application is pending may defeat the very object which the plaintiff is trying to achieve, through dissipation of the subject matter of the suit, or removal of assets of the debtor from the Court’s jurisdiction, etc.

· A demand letter would thus adversely affect the element of surprise and the efficacy of the Court orders.

9. ILLUSTRATION:

MPOLE & SAMU COMPANY ADVOCATES MUTULA HALL, SECOND FLOOR,

P.O. BOX, 100356-00100, NAIROBI, KENYA

Tel: 0723321654 / 020-2586987

Email: mpole75@gmail.com

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

Our Ref: DL/10/2017 Your Ref:

TBA

20th July 2017



“WITHOUT PREJUDICE”

TO

SAMUEL BITOO,

P.O. BOX 1289-00100, “BY REGISTERED

POST” NAIROBI.

Dear Sir,

DEMAND LETTER



We have been instructed by our client Mrs. Moses Limutu to address you as follows:



On 19th June 2017, our client painted your home for a contract price of Ksh.1,500,000. While you made the first two of the contract payments as agreed, you have delayed and/or refused to make the final payment of Ksh.500,000.


Our client has made repeated attempts to collect, but you have not come forward with the money.

Our instructions are to DEMAND from you, which we HEREBY DO, the immediate arrangements to make the final payment of Ksh.500,000 to my client.



TAKE NOTICE that unless you comply within the next 30 days from the date hereof, we shall commence proceedings without further reference to you whatsoever and at your risk as costs and other attendant consequences.



Yours faithfully,



MPOLE KAVITA

FOR: MPOLE & SAMU COMPANY ADVOCATES



Cc: Client



PRE-TRIAL RESEARCH AND DOCUMENTATION

1. INTRODUCTION:

· It is said “failing to plan is planning to fail” and “there are no secrets to success. It is the result of preparation, hard work and learning from failure.” - Collin Powell.

· Before the maiden appearance in Court is made, an advocate has to make sure that s/he has done adequate preparation for the trial to avoid embarrassment before the Court, his/her client and prospective clients. Adequate preparation also gives one the much needed confidence for tackling trial.

· Documentation are the records that are used to prove something or make something official.

2. LEGAL RESEARCH:

· Research will involve the diligent study of the subject matter of a brief i.e., an advocate will investigate and interpret the facts of the case, revise the accepted theories and laws in light of the new facts and the practical application of such new or revised theories or laws.

· Legal research is meant to find the leading cases governing the issue in question. However, an advocate should keep in mind that too many precedents may cause confusion apart from being time and cost consuming.36 For instance, in World Wide Treasure Adventures Inc. v. Trivis Games Inc.,37 a Counsel had applied for an injunction without first understanding or researching the applicable law. It was held as negligence on part of the Counsel and the failure to keep abreast of developments in their own area of practice, led to dismissal of the application and advocate-client costs being awarded against the Counsel.38

2.1 STEPS IN LEGAL RESEARCH:

The process of legal research is composed of five steps:

a) Problem/fact analysis: This involves understanding and analysing facts of the case. An advocate should thus carefully:

i. first, listen to a client during a client interview and try to get the whole story from the client and all relevant information required in order to know what the case is about;

ii. second, identify the issues arising therein;

iii. third, confirm that he has captured all the relevant parts of the case;

iv. fourth, analyse the police report, the witness statements, sketches and exhibits presented to gain a better understanding of the case (where applicable i.e., in the Faith Mueni’s report),.

b) Identification and analysis of legal issues: Legal issues are matters that require legal analysis and that defines rights, duties, breach of said rights and duties, and remedies that may follow. An advocate should for ease of reference and organization arrange the legal issues in order of ‘relevance.’

c) Categorisation of legal issues: Legal issues ought to be classified in order of:

i. applicable law: The fact pattern ought to disclose the apparent and latent statutory provisions of law that are applicable. For instance, in a criminal matter, an advocate would be guided by the Penal Code, Cap 63 to determine whether the complaint or charge filed against his client is an actual criminal offence in Kenya.

ii. administrative and procedural issues: An advocate should identify what procedural technicalities are applicable in the case and whether such procedures were followed or not. For instance, if a client is charged with a criminal offence, an advocate ought to establish whether the accused was afforded all constitutional safeguards he was entitled to i.e., the right to be released on bail or bond and whether he was presented before a Court within 24 hours of his arrest. In civil matters, an advocate ought to be determine issues i.e., whether appearance has been entered, and whether the client has been served with all proper documents they need in order to sufficiently prepare for a defence. An advocate must also be versed with the relevant Courts to approach, the pleadings that ought to be filed and the applicable filing fees.

d) Outlining the scope of research problem: This is done to determine the focus points of an advocate’s research. The scope ought not to be so broad that captures too much information running the risk of obscuring the most important concerns; and neither ought it to be too narrow that some relevant concerns are left out. For instance, in a labour relations matters, the scope of research would go towards determining issues relating to wrongful termination, unfair termination and terms and conditions of the employment contract.

e) Defining the research strategy: A research strategy is concerned with the how to obtain the information needed for the clients’ case i.e., case laws would allow the researcher to identify the Court’s historical interpretation of the legal issues at hand while secondary material will give the researcher a fuller appreciation of the legal issues at hand. However, it is important for an advocate to first take stock of the resources s/he has at disposal.

3. DOCUMENTATION:

Proper documentation is important as it:

i. conceptualizes the theme of the case;

ii. helps an advocate to plan presentation of the case;

iii. effectively narrates the client’s story;

iv. ensures no documents are forgotten

v. helps an advocate to vividly, efficiently and effectively present a case.

3.1 GENERAL RULES ON ORGANIZATION OF DOCUMENT:

The following are the general rules on organization of document:

a) Never mark a document: A document intended to be produced in Court or to a witness should never be marked. An advocate should rather put the documents in a ‘loose-leaf folder’ and/or insert a ‘butterfly brand indexing strip’ at convenient lengths and properly marked for easier retrieval. Otherwise, an advocate can insert own notes on a separate sheet for reference.

b) Document assembly: Sometimes, an advocate may not have all the required documents. The documents to be produced generally depend on the Court to be produced, and whether it is a civil or a criminal case, or an appeal. It is therefore important for an advocate to make a proper index of the documents s/he has and what s/he is expected to have.

c) Photocopy important authorities: An advocate should ensure important authorities are photocopied and suitably flagged in folders. S/he can as well make notes in the margin for reference.

d) Indexing the case: In a suit involving a number of witnesses, an advocate can compile an index of witnesses for easier understanding of the case. The index may be set out as follows:

Witness Page Remarks

Ivy Samwel 41-47 Present at fight between Njoroge and another

Sonu Peters 32-35 Photos of scene

A similar index for exhibits can be made. Exhibits of the ‘plaintiff or prosecution’ are generally identified by letters and ‘defence’ exhibits by numbers. The index may be set out as follows:


Exhibit No.

Description

Witnesses

Page


A

Photographs of scene

Ivy Samwel

22-25


The provenance of an exhibit must be demonstrated i.e., its origins must be established. Besides, the exhibit must be either the same or identical, meaning that the exhibit should not have been changed, mixed, contaminated or tampered with. An advocate must therefore know how to prove, reinforce and corroborate the evidence produced relating to each event, and more importantly on how to stop an opponent from undermining such evidence or witness. For an opponent’s case, an advocate must work out on how to diminish or contradict the evidence produced relating to each event, or to diminish the credibility of the witnesses who gave the evidence.

e) Charts, diagrams and drawings: The case may call for production of a chart. Complicated financial transactions are often set out this way. Where the chart proves to be accurate, Judges will often allow it to be tendered as an exhibit. Diagrams and drawings can be useful in many ways.

f) Photo albums: Many cases involve production of photographs. In a civil case seeking for damages for personal injuries, photographs of the instrument that hurt the plaintiff i.e., a car or a machine, together with its surrounds can be produced. In a criminal case, photographs taken at the scene of crime can be produced.

g) Case file: The file is an immediate source of all information on the client’s case. It contains basic information i.e., the client’s full names, telephone contact, email address, postal and physical address. The first documents filed in the Case File are written instructions by the client. The client must sign them to confirm their authenticity and content. Any attendance to or with client, whether in Court, on the phone, or in the streets, should be noted in the file for case history and for billing process. Minutes from the meetings with a client are also filed and recorded. Moreover, the file includes advocates’ notes, trial documents, correspondences with third parties and case laws/authorities. For case laws, an advocate should serve copies of a list of authorities to the other party at least a day before the hearing. This is a statutory requirement for matters before the High Court and Court of Appeal.

h) Trial notebook: This contains a list of documents needed in the Court room. The notebook organization should parallel the trial process: Facts, Pleadings, discovery, motions, openings, closings, primary and secondary authorities. The notebook also includes direct and cross-examination outlines.

3.2 DOCUMENTS IN CIVIL CASES: Plaintiff’s file:

a) Advice on evidence: It is a document that analyses and sets out the entire preparation process for a civil litigation. From the client’s brief, an advocate will have known the facts of the case, where the cause of action arose, parties to the pleadings, the liability or otherwise of his/her client, the relevant laws and statutes and judicial authorities to be relied on at trial. The rules on disclosure require that an advocate serves the opponent all the relevant documents to be relied on during trial.

b) Demand letter: Order 3, Rule 2(d) of the Civil Procedure Rules, 2010 gives a demand letter as one of the documents accompanying a suit.

c) Pleadings: They contain the complaints, the responses thereof. They should all be arranged in chronological order. Sometimes, if the lawsuit is based on a specific Code or Statute, a copy of it should also be kept in the pleadings. Likewise, the motions section will contain all pre-trial motions, responses, and Judge’s orders on said motions, all in chronological order.

d) Plaint: The documents to accompany the plaint include the:

i. Verifying affidavit,

ii. List of witnesses,

iii. Written statements signed by the witnesses excluding expert witnesses, and

iv. Copies of documents to be relied on at trial including the demand letter.39

e) Affidavit of service: It is essential to have it as well.

f) Defendant’s file: It will contain the following documents:

i. Memorandum of appearance.

ii. Affidavit of service.

iii. Documents accompanying defense:

· Verifying affidavit under Order 4, Rule 1 (2) where there is a counterclaim.

· List of witnesses to be called at trial.

· Witness statements signed by witnesses except the expert witnesses.

· Copies of documents to be relied on at trial.

g) Other documents (Order 9, Rule 5)

i. Notice of change of advocates (must be filed and served to all parties in the suit).

ii. Notice of appointment of advocate (where there was none previously).

iii. Notice of intention to act in person.

iv. Pre-trial questionnaire40 (to be filed and served by the parties within 10 days after close of pleadings except for small claims - Order 11, Rule 1 to 3).

3.3 DOCUMENTS IN CRIMINAL CASES:

For criminal litigation, the first step in preparation requires an analysis of the charge-sheet or information so as to determine the exact charges a client is facing and to prepare a trial plan. A trial advocate should thus have a check list of the following documents:

a) Letter of instruction: The letter is from the client to the advocate and it grants an advocate authority to represent a client.

b) The charge-sheet: A copy of the charge-sheet should be filed in the client’s file. It contains all required information i.e., the offence a client is charged with. This is to enable an advocate to fully prepare his defence. If there is any error in the drafting of the charge-sheet, an advocate may seek to have the charges struck out.

c) Copy of the bail or bond receipt: When a person is released on bail, the order and reasons thereof should be in writing. A copy of such should be filed in client’s file.

d) Request of witness statements: This is usually in the form of a letter directed to the prosecutor requesting him/her to issue the defence counsel with the witness statements. The request can be made orally in open Court. Once the defence counsel requests for the witness statements, copies thereof will be served to him and filed accordingly.

e) Client’s statement: This includes any recorded statement made by the client which the advocate intends to use in the client’s defence.

f) Document to be used in defence: If there is any document in the possession of the client which may be useful in his defence, a copys of such document is to be kept in the advocate’s file for easy reference and submission to the Court whenver need arises. Such documents may include:

i. Separate bank account statement showing that a client had his own bank account in addition to the joint account.

ii. A copy of the marriage certificate whose authenticity is subject to challenge, etc.

g) Correspondences: These are in the form of letters either to the client updating an advocate on the case, or official communications with Prosecution, the Registrar of the Court, or any other person to whom the defence advocate communicated with officially with respect to the case for purposes of obtaining certain information. For instance, Summons requiring attendance, letter to the client informing him of the hearing date, request of witness statement, are correspondences.

h) Cause list: This is simply the list of cases that the Magistrate/Judge will be attending to on the particular day. It contains: The date, Court number, name of the Magistrate/Judge sitting in that Court, case number of the suit, and the parties in the suit. These are in numerical order of how they will be called out and heard in Court. The cause list is important as it enables an advocate to know whether his case is listed, when it will be heard, whether it is a mention/application/a hearing for the advocate to know what s/he will be going to do in Court on the particular date.

i) Court attendance record: This is a document kept in the advocate’s file to facilitate the smooth running of the case. It is intended to assist the advocate in keeping track of the proceedings. It contains the following particulars, the:

i. date when the case is to come up before Court,

ii. file/ case reference number;

iii. Magistrate/Judge before whom it is listed;

iv. parties to the case/suit e.g., Republic v. Mwangi.

v. reason for appearance before Court which i.e., mention, application, hearing

vi. outcome notes;

vii. outcome of the particular appearance before Court;

viii. action to be taken;

ix. bring up date this is for official use to help such that when the hearing or the mention dated is near, the file is to be brought up for preparation.

j) Contents of the prosecution file: When a crime is reported, the police make a record of that report in:

i. Occurrence Book: that indicates complainant, subject matter, place and circumstances of the alleged crime, etc.

ii. custody record: which explains why the suspect was arrested, place, time and date of arrest. These records have their parentage in the police standing orders.

iii. others: blanks, photographs, sketches and photos of the scene of crime or accident and other material pertaining to the reported crime. These documents fall under the section marked “B” of the report. If photos are included, they should be mounted on foolscaps or envelops of a suitable size and contents of the envelop clearly marked on the top.


NEGOTIATION

1. INTRODUCTION:

· ‘Negotiation’ is an interactive communication process that may take place whenever two parties want something from each other.

· Negotiation is one area under the Alternative Dispute Resolution Mechanisms.

2. IMPLIED SKILLS OF NEGOTIATION:

a) Good Communication

b) Good Listener

c) Patience

d) Basic Awareness of needs of the other side

3. ELEMENTS OF NEGOTIATION:

a) Relationship: Negotiation involves relationships. It is important when we need the consent of others to achieve our ends, or when unilateral means are not morally, socially, or politically acceptable, it is better to involve others.

b) Communication: A central process in negotiation is communication. This can take place implicitly in bargaining processes, or more explicitly in different kinds of conversation. Communication should not be taken for granted.

c) Alternatives: Things you can pursue away from the table. It is especially important to understand your best alternative to a negotiated agreement.

d) Interests: What is important to you that you can achieve in the negotiation.

e) Options: Tangible steps that serve interests and can be part of an agreement.

f) Legitimacy: Sources of justification such as legal standards or precedents, professional norms, market value, social or economic standards (e.g. blue book value).

g) Commitment: How do we guarantee we both will follow through on our agreement?


4. TIPS FOR NEGOTIATION

a) Attitude: Assume positive corporate attitude.

b) Respect: Show respect, dignity and professionalism to the other side. Don’t be condescending (snobbish) with a superiority complex.

c) Receptive: Be receptive to the other person’s ideas. Try and include as many of their suggestions and thoughts fully and appropriately.

d) Shift focus from defeating each other, to defeating the problem.

e) Be calm, cool and collected.

f) Stick to the issue at hand.

g) Don’t be judgmental, stick to the facts, and be realistic.

h) Don’t take things personally: A disagreement is not a personal affront. Try not to be defensive.

i) Keep things in perspective.

j) Take time to educate the other side on your point view.

k) Never make personal attacks. It damages reputation; self esteem; damages credibility as a professional and one’s credibility to argue the case.

l) If the heat is too high, take a break, adjourn, cool off, etc.

m) Maintain a sense of humour (wisely): It breaks the tension.

n) Remember the dispute at hand is not the end of the world.

o) Agree to disagree. Remember some things are non-negotiable e.g., points / issues of principle.

5. PLANNING FOR NEGOTIATION:

· What are my client’s objectives?: What are the primary and secondary objectives.

· You must have an analysis of the facts of the case: What are the agreed facts? What are the contested facts, what the facts in dispute are? What are the issues, where possible the analysis must include an analysis of figures.

· Have an analysis of the law: What is the Statute law, Apply the law either common/statute law to the issues.

· State in your plan your proponent’s case: What law favours them? What are the merits of their case? What is your answer to their case?

· Strategies and tactics: What approach - competitive or co-operative? What concessions do you want to make? What tactics? What will you reveal? Any trade-offs? Any concessions.

· You need to have a proposed structure of negotiations: Who do you propose to make the opening move? Think of BATNA (Best Alternative To Negotiated Agreement). Do you have authority to settle or is it subject to confirmation by your client? Do you have to file it in Court?

6. DON’T’S DURING NEGOTIATION: 

Don’t:

i. deliberately mislead your opponent for a favourable outcome;

ii. conceal something that ought to be disclosed;

iii. make an offer or commit your client without his instructions or authority;

iv. go back on your word;

v. bicker/quarrel/make personal attacks.


7. STAGES OF NEGOTIATION:

a) The opening move: People start from positions. When making the first move, the question is should you step down? Should you be the first to make a concession?

There’s a school of thought that believes negotiation is a power game and giving in first is too soon and is a show of weakness. Others believe that if you give in first you may become a victim of the winners curse, i.e., make first offer and other side immediately accepts. You’ll go away wondering whether you gave in too soon and whether you missed out on something, etc.

Therefore present the first move as what you need most. It should be well articulated and grounded with reason. Present it as an offer as opposed to a demand. When people are presented with demands they become hostile and unresponsive.

Avoid staking out a position, i.e., you take a stand and become totally unwilling to move from it. Because you are a negotiator you shouldn’t claim that an issue is non-negotiable.

Don’t make offers that are widely outside the ZOPA (Zone of Possible Agreement) creating the impression that you are not serious and not acting in good faith.

b) Conduct during negotiations: Establish the authority of the person you are negotiating with. It will be a total waste of time to hold negotiations with someone without authority to settle. For example, Koffi Annan had to eventually disregard the emissaries and go straight to negotiation with the principles. Employ the best of communication skills i.e., ask open-ended questions. Allow the other side to say what they want and give reasons (i.e. explain why). Avoid making inflammatory statements i.e., those that will need you to immediately substantiate. You create the risk of escalation of confrontationality by making such statements.

Listen: Active listening, real listening. You must therefore be keenly aware of your body language. Keep your cool. Don’t engage in histrionics. Don’t get too dramatic. Don’t be afraid to make concessions. Concede low value items in the early stages. You then impose a burden on the other side to reciprocate.

Don’t object to the other side’s proposals peremptorily and outright. An effective negotiation has to be diplomatic. Be creative. It may be that cases that you are handling have been settled before in a particular way. This doesn’t however mean that you are tied to settling the same. Think outside the box. Not necessarily in terms of money i.e., if client has suffered bodily injuries, you can have the other side pay for his therapy. That is, come up with a solution that is more holistic than the normal

Be confident. There’s nothing as bad as a nervous negotiator. Look people in the eye, speak firmly, be articulate, be clear and methodological in your presentation, don’t shout but be audible. Don’t be belligerent; look your best to be your best. As you go through the process, make regular summaries of the agreed items.

c) The closure phase: You need to consider the following: When? Where? The documentation of closure? The pending issues?

When to close? The danger of closing too soon is that certain important issues may be left out/unconsidered and come back to haunt you. Closing too soon is a sign of an inexperienced negotiator. If you wait too long to close, the deal may die; parties may change their mind on already agreed on issues.


Agree on the terms of the agreement. Agree on who’ll draft the agreement. As the drafter, it is important that you don’t leave anything out i.e., who will implement what, period of implementation of dispute settlement mechanism.

Ensure the agreement is signed by the parties. If it’s a settlement/consent, ensure it is filed in Court. Don’t leave things hanging. Tie up loose ends. Check up the ‘without prejudice’ rule. What is it? Court cases? Theory behind it? Prior planning is important in negotiations and trial advocacy proper. Don’t enter into a consent without your client’s approval. Since in Kenya most of the clients’ rights are transferred to the advocate, the advocate has a higher ethical duty.

d) Concluding the negotiation: Normally, there are too many assumptions between the parties when trying to conclude a negotiation. Therefore, check every detail of the agreement. Every oral agreement has to be captured in writing. Ensure the agreement is comprehensive. Where, when and by whom the agreement is to be done must be included. Record the agreement and issues outstanding. Ensure the agreement is enforceable. If the agreement ousts the general law of the land or the Courts, you must ask yourself whether that agreement is enforceable. Make sure the agreement is clear. Where appropriate, simplify the agreement. In Bell v. Peter Braune and Co.,41 it was held that a lawyer who fails to ensure a term agreed is fully recorded and made enforceable may be sued for negligence. Capture your oral agreements in a deed of agreement. There’s a slight difference between contracts and deeds. In contracts, consideration must flow from both sides. The document(s) must not necessarily be in contemplation of litigation. But if the matter is in Court, ensure that a consent is taken and recorded in Court. The words ‘Liberty to apply’ can be included in a consent - meaning that the matter may come back to Court for further directions.



OPENING STATEMENT

1. INTRODUCTION:

· “The opening statement is where you win the trial” - Gerry Spence.

· The Black’s Law Online Dictionary, opening statement is a term that is given to the initial statement of the attorney to the Judge, or the Judge to a Jury.

· Steven Lubet, Modern Trial Advocacy, opening statement is an advocate’s first opportunity to speak directly to the Jury about the merits of the case.

2. PURPOSE OF AN OPENING STATEMENT:

a) Opening moment: It helps the Court to:

i. familiarize with the parties;

ii. understand the nature of the dispute: The advocate briefly outlines of how, where and when the cause of action arose;

iii. know the issues in dispute;

iv. know the applicable law: The advocate briefly highlights the areas and principles of law that are relevant to his case;

v. know where the standard and burden of proof lies;

vi. focus on the key evidence;

vii. place witnesses and exhibits in their proper context, and

viii. know the relief sought.

N.B: the above can be taken as ‘contents of an opening statement.’

b) Legal function: It help reduce confusion in flow that may arise in the trail process, through sequence of witnesses and cross-examination.

c) Advocacy: It is an opportunity to advance theory of an advocate’s case. In other words, it arouses Court’s interest to an advocate’s matter;

d) Impression: Having an interesting, clear, precise and concise opening statement then, the Court’s ears are alert the statement;

e) build rapport with the judicial officers, speaking to them as intelligent people and communicating your sincere belief in your cause. This continues the process of establishing bonds with jurors that was begun in the voir dire.

f) For the defense, it presents an opportunity to alert the Court that there will be two sides to the case, by poking holes to the other partie’s statement/case for the Court not to make up its minds too soon.

g) Roadmap: It gives a “roadmap” of where an advocate intends to go.

h) Ruhi v. Republic,42 where the students of the University of Nairobi had stolen a car and unlawfully converted it for their own use. The one found driving the car had no license and was charged with driving without a driving license. The prosecutor while giving his opening address used flamboyant language. He compared the accused persons’ behaviour to be like that of a donkey. The Court held that “opening statements are only limited to the facts and particulars of the charge, with only a mention of the evidence that the prosecution intends to use to prove its case, and should not be used as evidence itself. The opening statement should not persuade the mind of the Court in the negative. ”

i) The opening statements should not be argumentative.


3. STATUTORY BASIS OF AN OPENING STATEMENT:

· Civil matters: Order 18, Rule 2(1) of the Civil Procedure Rules, 2010 provides that, unless the Court otherwise orders, on the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

Under Order 18, Rule 2(1), the trial Judge has thus, discretion to change the order of opening remarks in unusual circumstances. One such unusual situation relates to a multi-party lawsuit. Where several counsels represent multiple plaintiffs or defendants, or the case involves a third-party complaint, the order of statements customarily is resolved among the parties at the pre-trial conference. If the parties are unable to set the order themselves, the trial Judge will do so. The party with the most to gain will usually go first for plaintiffs, and the party with the primary liability or the largest financial exposure will usually go first among defendants.

‘Pre-trial conference’ is a meeting of the parties and their attorneys before the Court prior to the commencement of the actual proceedings. It may be requested by a party/ parties, or ordered by the Court. It may be conducted for several reasons:

a) Expedite the disposition of the case.

b) Help the Court establish managerial control over the case.

c) Discourage wasteful pre-trial activities.

d) Improve the quality of the trial with thorough preparation.

e) Facilitate a settlement of the case

· Criminal matters: There are two provisions in this regard:

a) Case for the prosecution: Section 300 of the Criminal Procedure Code, Cap. 75 provides that an advocate for the prosecution shall open the case against the accused person, and shall call witnesses and adduce evidence in support of the charge.

b) Case for the defence: Section 307(1) also provides that the accused person or his advocate may open his case, stating the: a) facts or law on which he intends to rely, and b) making such comments as he thinks necessary on the evidence for the prosecution; the accused person may then give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-examination and re-examination, (if any) may sum up his case.

Procedure:

i. The party with the burden of proof usually gives the opening statement first, hence the prosecution goes first.

ii. The accused or his counsel may opt not to give an opening statement. However, if they opt to give their statement, they could present it after the prosecution statement or postpone it until after the close of the prosecution case.

iii. These provisions apply uniformly to both High Court and Subordinate Court (Section 213 of the

Criminal Procedure Code, Cap 75).

· Judicature Act: Section 10 of the Judicature Act, Cap 8 provides that the Chief Justice may make rules of Court for regulating the practice and procedure of the High Court and, subject to any other written law, that of Subordinate Courts and the power to make said rules shall include the power to prescribe fees and scales of remuneration.

4. ELEMENTS OF AN OPENING STATEMENT: The following are the three important steps in an opening statement:

i. Introduction: At this stage, the following happens:

a) Introductory remarks will be given by the presiding officer.

b) Counsel for the plaintiff will introduce him/herself by name as counsel representing the plaintiff.

c) Introduction of the witnesses, places, and instrumentalities involved in the case.

d) Defence counsel will introduce him/herself by name as counsel for the defendant.

e) The introduction should call attention to the issue and provide the first reference to the advocate‘s theme. It is counsel’s opportunity to introduce the theme in an appealing manner. For instance, the theme in City of Hippo v. Desmond Peters can be, “this is a case of broad daylight robbery.”

ii. Body: An advocate for the plaintiff will then give a brief summary of the case by stating the:

a) facts which are in issue or in contention;

b) legal rules applicable in the suit;

c) evidence that will be presented and adduced to prove the facts;

d) witnesses who will be called.

The defence counsel will also be given an opportunity to make his/her opening statement (relying on the same facts as presented by the plaintiff’s advocate) and will state the witnesses they will call. It is important for the defence to acknowledge harmful/bad facts by stating that “the defence will try to show that this is a case of mistaken identity and that we arrested the wrong person but, our evidence will clearly show that it is the accused person who is before Court that actually committed the offence.”

iii. Conclusion: The conclusion, just like the introduction, it commands special attention. An advocate should therefore conclude on a high note, using the theme again as the core of the conclusion. An advocate should state the:

a) issues arising;

b) remedy s/he is seeking and;

c) why the Court should rule in his/her client’s favor.

5. REQUIREMENTS BEFORE HAND: An advocate should:

· have a theory to the case;

· draw up a theme based on the theory;

· know the strong points of the case;

· know the weak points, and mitigation strategy;

· know the witnesses and the evidence, on both sides;

· remember s/he is telling a story.

6. IMPORTANT THINGS TO NOTE: An advocate should:

· have and explain a clear theory of the case i.e., how the facts fit into the law so that an advocate’s client wins. For instance, a ‘theory of the case’ for a criminal charge of assault might be:

Identification - “it wasn’t him.”

Self defense - “he was protecting himself.” Alibi - “he wasn’t there.”

· use a persuasive theme. For instance, “Nude, but not Lewd;”

· tell an effective story;

· show a clear and effective organizational structure;

· effectively deal with the weaknesses of the case and turn them to strengths when possible;

· present only what s/he can deliver during the evidence;

· use “primacy and recency” by starting strong and ending strong;

· not use notes;

· demonstrate command of the facts and issues in the case;

· show confidence and belief in client’s case;

· be organized;

· focus on relevant matters;

· have passion for the case.

7. TECHNIQUES IN OPENING STATEMENTS:

· There are certain techniques one can adopt when carrying out their opening statement in order to make one’s case more credible and interesting. It is not compulsory that all the techniques must be followed to the letter in every case. One may vary them depending on the appropriateness of each suit. The following techniques/guidelines are thus helpful in making a good opening statement:

a) Start strong: To accomplish this, consider beginning the opening with a short statement that gives the Judge a capsule of the case in two to three dynamic statements. For e.g., “this is a case about a company that put profits over people, or what you will hear is a story of a human tragedy.” The theme and the story should be conveyed in a simple language.

b) Clarity of description: The advocate should describe his case with sufficient clarity to help the judge understand the case.

c) State the theme: A theme is crucial in the opening statement. Most listeners generally forget particulars of any oral presentation within a few minutes after they hear it. However, if the statement is built around a certain theme, the listeners are unlikely to forget it. A ‘theme’ is a short, simple concept that runs throughout the presentation, receiving reinforcement at different aspects of the case presented. Some examples of themes include: “when in doubt, you must rule out,” or “if the glove does not fit, you must acquit,” or “do not choose profits over safety,” or “the buyer needs a thousand eyes – the seller only one.”

d) Consider the audience: An advocate’s audience is restricted to the presiding judicial officer who hears and determines suit on its merits. Therefore, in considering the appropriate audience one has to consider the forum in terms of whether the presiding judicial officer is a Magistrate, High Court Judge or an Appellate Judge.

e) Brevity: An opening statement should be brief and to the point. However, it should capture all the elements of an opening statement.

f) Narrative form: An opening statement should take the form of a narrative, where the advocate narrates to the Court the series of events as they occurred trying as much as possible to be persuasive and to paint a picture in the mind of the Judge. There are three approaches through which one can narrate the facts of the case. This is by:

i. utilizing a technical approach. An advocate tries to highlight the legal issue in dispute through the factual information that surrounds that dispute;

ii. utilizing a casual approach: The counsel focuses on a particular fact or facts, and thereafter portrays other facts that try to explain or justify the fact in issue.

iii. utilizing a chronological approach: The counsel simply states all the facts step by step from beginning to end. The approach taken will vary from case to case, depending on the nature of suit. An advocate should strive to begin with the strong points of the case and then the weaker points before finishing with a strong point.

g) Giving the version of a case: One should present both favourable and unfavourable facts of the case. Presenting unfavourable facts may be advantageous. It does not amount to puncturing a case but rather it serves the purpose of:

· disarming the defense before they can present a damaging statement to one’s case during their opening statement;

· portraying honesty on one’s part of the case;

· removing any element of surprise that the defense may raise;

· allowing counsel to explain any weaknesses in their case.

The plaintiff may also point out the weakness present in the defense’s case in the opening statement. This is aimed at destabilizing the defense by exposing their weaknesses.

h) Personalizing a client: In presenting an opening statement, an advocate should ensure that the Court/Jury gets to know his/her client. This is by stating positive elements of a client particularly, in family life, education, work background, etc., that are meant to create a positive attitude towards a client on the part of the Jury;

i) Challenging the credibility of the opposing witnesses: Effective opening statements call into question the credibility of critical opposing witnesses, where possible. Knowing in advance that witnesses have credibility problems in their testimony, it strengthens the listener's resistance to persuasion by those witnesses thus, reducing their effectiveness;

j) Being persuasive: A counsel must be persuasive. S/he can achieve this by:

· presenting their case in active voice (and not passive). In this way, s/he will be able to personalize a client’s case.

· not over exaggerating the opening statement. It should be straightforward and direct. One should also avoid mis-stating facts or being over-emotional. This may make the Court uncomfortable;

· not reading an opening statement as it will be less inspiring. Reading a statement is essentially a waste of time as the content is overshadowed by its poor delivery. Further one demonstrates lack of concern and familiarity with the case. During the preparation for trial one may write out the opening statement in full and practice delivering it while trying to minimize reliance on the script;

· exercising oratory skill and portraying confidence. The choice of words and phrases used is important. Descriptive words, which are differentially "loaded" produce different perceptions. Using movement to emphasize various points is also a good technique;

· being clear, plausible, audible, and maintaining eye contact.

k) Being simple: An advocate should:

· try and avoid legalese, but rather talk to the presiding officer in a clear language;

· use simple words and sentences, since they are easier to follow and remember.

l) Telling a story: An advocate should state the facts in a story-like fashion, since it has proved to be the best way to keep the Court’s attention. Take the Court/Jury to the scene, and make them “see the facts” through the story.

m) There must be a connection: The opening statement must connect with the evidence and testimonies that will be presented later on during the suit.

n) End strong: An advocate should end as s/he began the opening, with a strong statement, tying the entire case together and giving the Judge a call for action.

o) Introduce visual aids: One may wish to introduce visual aids to enhance the value and effectiveness of the opening statements. Important exhibits may be displayed in order to give a picture of what the Court is dealing with. In criminal cases, defense counsel may wish to draw up a chart, graph or chronology of the scene of crime or of the events leading to the crime and illustrate how this will prove his client's innocence.

p) Primacy: That which is heard first by the Judge will be remembered best. If the Judge accepts the belief in the beginning, his belief is more intense. People tend to believe more intensely that which they hear first. An advocate should introduce strong facts first to get the most effect.

q) Recency: That which is said last is remembered best. Recency relates to the ability to remember. Primacy relates to the intensity of the belief. Both can be used throughout opening and the case to present your theme, strongest witnesses and key points.

8. THE DONTS OF AN OPENING STATEMENT: In an opening statement, an advocate should not:

a) argumentative: The advocate should not make an argumentative opening statement. S/he is restricted to offering a preview of the anticipated testimony, exhibits and other evidence. S/he should discuss what the “evidence will show” rather than merely what it will be;

b) use a table of characters: In case of a trial, the Jury does not yet know the witnesses, so telling them who is going to testify is not helpful;

c) give a course in trial procedure: This technique is often referred to as the “road map approach” i.e., stating that “the opening statement is a road map of where the case will go.” This technique is neither necessary nor effective;

d) give a disclaimer of credibility: An opening statement should not be treated as evidence;

e) overuse the phrase “the evidence will show”: The tendency to use this phrase in opening statements generally occurs where an advocate does not want the other side to object. It is neither necessary nor desirable to overuse the phrase;

f) say anything s/he is not sure of that will be admitted into evidence: Every good advocate listens to what the other side says during opening statement. If the other side says something that does not come out in evidence, then good lawyers know exactly what to do. During closing argument, counsel reminds the Court of what his or her adversary said during opening statement: “She told us in her opening statement that she was going to prove this, and that, but you did not hear any testimony or see any documents that proved these points.”

g) engage in prohibited conduct: Never state a personal belief about a client or a client’s case. This is by stating for e.g., “if you were in my client’s position, you would have done the same thing.”

h) give the Judge unconnected facts: It is recognized that when people receive random data or unconnected facts, it seldom leads to understanding or knowledge about an issue;

i) Avoid legal talk: An advocate should avoid legalese and use everyday common language, i.e., words like ‘before’ rather than precedent, or ‘after’ rather than subsequent.

9. EXAMPLE OF OPENING STATEMENT:

a) CITY OF HIPPO v. DESMOND PETERS PROSECUTION OPENING STATEMENT:

May it please you, Your Honour.

My name is Gloria Cherono, I am the prosecutor in this matter. My learned friend David Mutunga appears for the accused person.

Your Honour, “this is a case of broad daylight robbery, taking advantage of a vulnerable person.” Mrs. Louisa Singano is the victim and the complainant in this case. Desmond Peters is the accused person who heartlessly together with others snatched Mrs. Singano’s treasured purse which was a gift given by her mother on her birthday.

On 1st of May 2009 at 15:30 hours when Mrs. Singano, accompanied by her sister, leaves her home heading to Municipal Market to look for home necessities. After reaching the market, Your Honour, Mrs. Singano buys what she needed and started heading home. She is carrying a plastic bag that had a purse in it. Suddenly, two boys starts following them and shortly after Mrs. Singano is alerted by a certain young man that she is being robbed. When she looks around, she notices that her bag had been torn by a razor blade and two boys running away, one of them passing her purse to the other one. Mr. Mohammed, a witness in this case, runs after them and manages to catch one of them who is then brought before Mrs. Singano who immediately recognizes him as one who robbed from her. The police officer who is at the scene of the crime after the offence took place then takes Desmond to the police station.

Your Honour, Mrs. Singano, the complainant will testify that it is indeed Desmond who stole her purse and that she saw them cutting the paper she carried which had the purse in it and thereafter saw Desmond and the other boy run away with it.

Your Honour, we also intend to call another witness, Miss Theela Singano, who was with the complainant when the offence took place. She will testify that she identified the boy who stole from her sister, Mrs. Louisa Singano, when the boy was caught and brought before them. Moreover, we will also call forth Mr. Said Mohammed who will testify that he saw Desmond and the other boy cut a plastic bag that Mrs. Singano was carrying and thereafter the boys ran away with it. He will also confirm to this Court that he ran after the two boys and managed to catch one of them. He then brought him before Mrs. Singano and a police who was at the scene of the crime. Mrs. Singano then confirmed that it was Desmond who stole from her.

Lastly, we will have Police Officer, Thomas Phiri who will testify that he was called to the scene where the crime took place and that when Mr. Mohammed brought a boy at the scene, Mrs. Singano affirmed that it was this boy known as Desmond who together with another boy, robbed Mrs. Singano.

Your Honour, the defense will contend that it is a case of mistaken identity, that Desmond did not rob Mrs. Singano and that he was a victim of circumstances. They will further present to this Court that Desmond confessed occasionally to being a pickpocket but deny that he did not rob Mrs. Singano in this case. However I believe that this honourable Court has an eye for justice and that following the evidence adduced it shall be found that it was indeed Desmond together with another, who robbed Mrs. Singano.

Your honour, a horrible thing happened on the evening of 1st of May 2009, a vulnerable victim was shamelessly robbed by the accused person. There can only be one just verdict for a person charged on the evidence in this case: guilty.

DEFENDANT’S OPENING STATEMENT:

Good morning, my name is David Mutunga and it is my pleasure to represent Desmond Peters on this very important case.

Your Honour, “this is a case of mistaken identity.” My client, Desmond stands here accused for robbing Mrs. Singano a purse that contained some money from one Mrs. Singano.

Your Honour, robbery is a very serious crime and the prosecution should prove beyond reasonable doubt that it is Desmond that actually robbed Mrs. Singano. In the absence of proof, we will ask for a verdict of not guilty your honor. This case is malicious and instituted in bad faith and the prosecution hopes that their witnesses will prove that my client did commit the crime, while in fact, the testimony will show otherwise.

Your honour, the prosecution has claimed to have an eye witness who identified my client as the thief, the same witness (Mrs. Louisa) has a really poor eyesight and on that material day, she was not wearing her glasses and therefore cannot say for sure, she saw my client. She also said that she didn’t see the faces of the boys who robbed her and she now claims that she is 80% sure that it was Desmond Peters who robbed her.

Your honour the statements made by the witnesses are uncertain, Mrs. Louisa said the boys who stole her bag ran away, while Mr. Said, said that when he arrested Desmond Peters, he was walking. Your honour the same Mr. Said, said that he (Peters) was not out of breath, and he was walking, yet the boys who stole, allegedly ran after committing the crime.

Your honour, allow me to bring this Court’s attention, there is bad blood between my client and Mr. Said who caught him, over a deal gone sore, and that Mr. Said may be using the chance to get revenge on my client and his uncle.

My Lord, we will call Mr. Edward kwaza as a witness, he saw the boys who stole the purse. He will testify that he saw the robbery taking place and that Desmond Peters was not among the boys who committed the offence. We shall also call Desmond Peters in his own defence.

At the conclusion of the case, we would ask you to find my client innocent. The prosecution would not have proven beyond reasonable doubt and we would ask for a verdict of not guilty.

Thank you.

b) FAITH MUENI: SAMPLE OPENING STATEMENT:

May it please you, Your Honour.

My name is............... and I represent Faith Mueni, the petitioner. The respondent is Alphonce Muoki,

represented by ……..

This is a request for Faith to be allocated her half of the Machakos’ farm and for the intended eviction by the respondent to be blocked.

I will first discuss the facts we will prove, after which I will review the evidence that will support these facts. We will prove the following facts, that Faith Mueni:

· was legally married to Alphonce and that the marriage was contracted under Kamba customary law.

· contributed to the purchase of the 13 acre farm in Machakos (LR. No. 9999).

· is legally entitled to an equal share of the farm.

Your Honour, ‘this is a case about a promise broken,’ ‘a dream ended,’ ‘a life shattered.’ My client, Faith Mueni, is a 35 year old mother of 3 children, Sebastian, Stella and Anne. She has been married to the respondent for 13 years, during which time she was a stay-at-home mom. The respondent is the District Education Officer of Machakos District.

Here is how it all started, 13 years ago. Faith meets the respondent and the two fall in love. They then decide to move in together. At the time, Faith is working as a waiter in a local hotel in Machakos. To formalize their relationship, they contract a marriage under Kamba customary law. Two years after the marriage and one child later, they buy a 13 acre farm near Katumani Research Institute. Although Faith does not make direct monetary contribution to the purchase of the farm, she takes care of all the family bills in order to allow the respondent to accumulate enough money to pay for the farm. A year after the purchase of the farm, Faith, on the respondent‘s request quits her job as a waiter and relocates to the farm. She diligently works the farm and is able to feed her family without requiring support from the respondent. There is even surplus harvest which is sold by the respondent and the proceeds used to build Faith’s house on the farm. She later starts a dairy farm which becomes very successful. With her proceeds from the dairy farm, she takes care of all the family bills, including the children’s school fees, in order to allow the respondent to comfortably pay off the mortgage on the farm. After the respondent finally finishes paying off the mortgage, he refuses to help Faith with the family’s upkeep. By then, the family has grown by two more children. He suddenly becomes verbally and physically abusive. His usual weekend visits become more infrequent, and finally stop altogether. Later Faith notices some construction taking place on her farm and on making enquiries is told that a house for the respondent‘s new wife is being put up. She then travels to Machakos town to confront the respondent, and finds a woman claiming to be the respondent‘s wife at his house. When the respondent comes home later, he gets so incensed on seeing Faith and orders her out. He even calls her a ‘mad woman’ for saying that she was his wife. Now this same respondent who was helped to his feet by Faith wants this Court to help him evict Faith and their children from the only home they have known for the last 13 years.

Your Honour, on the point of whether Faith was legally married to the respondent, you will hear the expert evidence of Mzee Nyamai, an 85 year old friend of Faith’s parents who was present during Faith’s betrothal ceremony. You will see the pictures of Faith’s parents taken on the day of her betrothal and another picture of the respondent’s dowry negotiation party. These pictures, as the respondent will admit, were purchased by him and given to Mzee Nyamai as a memorial of the ceremony. This demonstrative evidence, along with the testimony of Mzee Nyamai, Jomo Obama and Faith herself, will convince this Court that Faith was legally married to the respondent.

Your Honour, as you will see, the respondent has little time for his family. Initially he would only go home over the weekends, but he has stopped visiting completely. Faith will testify that for almost the whole life of this marriage she was the responsible for the needs of the children, all in an effort to ease the financial burden on the respondent. A selfless sacrifice to which the respondent has attached no value. A review of the pleadings will demonstrate that it is the respondent who wants this marriage (whose existence he denies) to end. As the facts of the case will show, like the dog in the manger, the respondent doesn‘t want Faith as his wife, is unwilling and does not have time to take care of his three children, but does not want his wife to be able to go on with her life, either. How selfish is that? Ask the horse who couldn’t eat his dinner when the dog wouldn’t move from the manger.

Your Honour, the respondent will contend that he single-handedly bought the farm in Machakos. He will even produce as evidence a Sale Agreement which indicates that he is the sole buyer. Besides, the seller of the farm will testify that to his knowledge, the respondent was not married to Faith. What the respondent will not tell you is that were it not for Faith’s contribution in paying for the family’s upkeep, he would not have bought the farm. Again, the Sale Agreement will not demonstrate that Faith’s contribution enabled the respondent to raise the purchase price. The seller, who had not seen or communicated with the respondent in many years, will also not tell you that Faith is married to the respondent, because he can’t tell. After relying on the respondent’s promise to live with her till death, and after 13 years of dedication to the respondent, Faith is about to lose it all. For nothing. She and her children are now threatened with eviction from their only home, and are facing a very uncertain future because of the respondent’s selfishness. This Court can come to her aid, and I ask that a permanent injunction be granted to block the respondent from evicting Faith and her children from the farm, and that this Court issues orders granting Faith an equal share of the farm in Machakos.

Thank you.

DEFENDANT’S OPENING STATEMENT:

May it please you, Your Honour.

My name is........... and I represent Mr. Alphonce Muoki who is the respondent. It is our case that the

petitioner in this matter, Faith Mueni, does not and has never owned or held the parcel of land identified as L.R. No. 9999 in Machakos and therefore is ill advised by her counsel in asking this honorable Court to making any orders regarding the said parcel of land. We will show the Court that:

· my client Alphonce Muoki was never married to Faith Mueni;

· all the contributions towards the purchaser of the 13 acre farm in Machakos (LR No. 9999) were made by my client Alphonce;

· Faith is not entitled to any share of the farm.

Your Honour, this Court has just listened to a sensational presentation by the petitioner’s side intended to paint my good client in bad light. It is not disputed that my client knew Faith Mueni; my client admits that they had a brief romantic liaison 13 years ago and got a child. My client not being one to abandon his responsibilities and as a way of making up for his indiscretions, out of the kindness of his heart offered to provide for the petitioner and their baby. It is sad that the kindness shown by my client has been abused to this point that we find ourselves at today.

Your honour, thirteen years ago, Alphonce was a well-educated man working for the Ministry of Education making strides career wise. He meets Faith who is working as a waiter and they have a brief sexual liaison for ten months. They are blessed with a son and Alphonce is proud enough to give the child his last name, Sebastian Muoki. For whatever reason, the relationship turns sour and the two part ways but Alphonce is responsible and proud enough of his son that he supports them and even makes visits to Faith’s home to be with him. Six months after their relationship has ended, Faith contacts Alphonce and informs him that she has lost her job as a waiter and is in need of a place to stay. She could rely on my client’s kindness and sense of responsibility to act. Alphonce has held a relatively enviable job and has made something of himself, having been able to acquire loan facilities from a bank and buy a 13 acre piece of land near Katumani research institute on his own. Alphonce empathizes with the seemingly helpless Faith and agrees to put her up at his farm house even letting her work the land at no profit to himself and never demanding any rents. There is a clear understanding that this arrangement was merely temporary until my client finds a bride and starts his home at the farm. This is all contained in my client’s sworn statement and he will testify to this.

Your Honour, the petitioner contends that she has been married to my client for 13 years and seeks to rely on the evidence of Mzee Nyamai, an 85 year old friend of Faith’s parents and is in his own words, the memory of the community. With all due respect Mzee Nyamai has seen better days. He was 72 years when the alleged traditional marriage ceremony between my client an Faith took place. With ageing comes a lot of degradation physical functional and abilities such as memory and recollection bear the brunt. As ‘the memory of the community’ is it also possible that Mzee Nyamai witnessed very many such ceremonies and is getting the participants confused? In his sworn statement he already makes the mistake of stating that Faith has 3 sons when in fact it is a son and 2 daughters. Alphonce is father to the boy and is responsible for him alone. The petitioner also seeks to rely on two photographs as proof of my client‘s alleged marriage to Faith. We admit that the photographs are authentic but they are not dated and the photographer cannot come before this Honourable Court. We will kindly be requesting the Court to indulge us in the rule requiring documentary evidence to be presented by its author.

Your Honour, counsel for the petitioner has attempted to take the wind out of our sails’ by pre-stating what we intend to rely on in proving that my client bought the 13 acre parcel of land with his own money and without any form of contribution from Faith or anyone else. I am confident that this Honourable Court has an eye for justice that will easily see through this smoke screen tactic. I do not wish to fall into their trap by being repetitive so I will just make an extremely short statement. The entire transaction for the land is clearly documented and at no point is Faith a party to the transaction. We will tender as evidence the Sale Agreement made between Alphonce and Mr. Charles Muema. The petitioner on the other hand seems unable to produce any documentary evidence that support her contention of being a contributor to the purchase of the farm. The complainant employs similar smoke screen tactics of pre-stating weaknesses in their case so as to take the wind out of our sails again. Faith mentions in her sworn statement that she tracked her contributions by recording them in a book that was allegedly taken by my good client and has somehow managed to elude finding, how convenient. I trust this Court‘s eye for justice. The kind hearted nature of Alphonce has surely been tested over these 13 years, but the straw that broke the camel’s back was when Faith had the audacity to storm into my client’s matrimonial home and desecrate its sanctity by peddling hurtful lies to his young bride, almost destroying their union ordained before GOD. After all evidence is tendered and all witnesses have taken the stand, I request that this Court finds for my client, dismissing the petitioner’s case with costs. We rely on this Court‘s eye for justice.

Much obliged your Honor.

j) Communication techniques: An advocate should:

· use appropriate communication techniques in language and vocabulary, demeanor43;

· ensure eye-contact;

· ensure good voice projection;

· pace, cadence and silence, (cadence - rhythmic flow of a sequence of sounds or words: a slight falling in pitch of the voice in speaking or reading)

· facial expressions;

· posture, and

· avoidance of distracting gestures and verbal habits.


1. INTRODUCTION:


EXAMINATION OF WITNESSES EXAMINATION-IN-CHIEF


· The plaintiff bears the obligation to convince the Court of fact of the truth of some proposition, which is in issue. This is the legal burden of proof. Its significance lies in the fact that the penalty or failure to discharge this burden is the certainty of failure in the whole action.

· The legal burden in civil cases rests upon the party who assert the affirmative of an issue. The rule is ‘he who assert must prove.’1 The standard of proof is on balance of probabilities. The plaintiff satisfies this legal burden as well as the evidential burden by calling witnesses.

· In examination-in-chief, the plaintiff will examine his witnesses with the purpose of eliciting from them all the material facts within their knowledge, which tend to prove his case.

· The defendant has also to prove any assertions of fact that s/he makes. S/he does this by calling witnesses or documentary evidence showing that the assertions made by the plaintiff are incorrect. S/he generally bears no burden of proof unless he makes a counterclaim or where the law states that he should discharge burden of proof. Examples of cases where the burden of proof lies with the defendant arises in the defense of insanity, or intoxication, or in the case a where a public officer did not receive money as a bribe.

2. OBJECTIVE AND ESSENCE OF EXAMINATION-IN-CHIEF:

· The main objective of examination-in-chief is to:

i. elicit testimonial evidence that will assist the Court in the administering justice;

ii. introduce undisputed facts;

iii. enhance likelihood of disputed facts;

iv. lay foundation for introducing exhibits;

v. reflect on witnesses’ credibility;

vi. hold the attention of trier of fact

· Burden of proof: In civil cases, the proof of case lies with the plaintiff’s counsel to prove their case on a balance of probability. Whereas in criminal suits, the prosecution bears the burden of proving their case beyond a reasonable doubt.

3. HOW TO CONDUCT AN EFFECTIVE EXAMINATION-IN-CHIEF:

For conducting an effective examination-in-chief, an advocate should:

· identify the issues and relevant facts in his case;

· identify evidence s/he needs to use in his case;

· identify which witnesses, documents or other evidence are available to prove the evidence;

· call the best witness first as this creates a lasting impression;

· identify which witnesses can authenticate the evidence to make it admissible if s/he has documents or tangible evidence;

· identify important questions to ask a client and any relevant witnesses in order to prove the evidence;

· exclude unprovable, implausible, impeachable and door opener facts which lead to the loss of the case.

· look at the pleadings and any answers to interrogatories, which may have been obtained to identify the areas of contention in the case;

· arrange a pre-trial conference with a witnesses in order to be able to obtain as much relevant information from them as possible;

· create sufficient time to discuss with the client and any relevant witnesses in order to ascertain the evidence they are to give;

· establish a rapport with the client and witnesses in the pre-trial conference;

· explain to client and witnesses how the Court operates and what will happen in the witness box. It is bewildering and often terrifying experience for most people to appear in Court, especially if it is for the first time and their future liberty is at stake;

· inform the witness about the position of the Judge and how the Judge is to be addressed;

· explain to them on administration of the oath or affirmation by the Court officer;

· explain to them the way you intend to ask questions and try to provide some outline of what they will likely be asked in cross-examination;

· have witness prepare a sketch or diagram before the advocate during pre-trial conference in case they are to be used in Court;

· evaluate the character and strength of the witnesses and determine what sort of effect they are likely to have on the Judge. Witnesses whose personality, recollections and/or prior history is questionable should be avoided and where it is inevitable that they have to be called, an advocate should try keeping their evidence to the bare minimum, and sit down as soon as an advocate get out of them the required information. Witnesses with a clear recollection of the relevant events can to some extent be allowed to tell their own story.

· start strong and end strong;

· not ask leading questions;

· be dramatic and persuasive;

· not interrupt the action (flow of the story);

· give each detail separate attention;

· affirm a point before refuting;

· not go on a fishing expedition in examination-in-chief;

· not argue while examining a witness not attempt to force a favorable answer;

· ensure that the factual content of a witnesses‘ evidence doesn‘t come from him/her;

· ask all material questions in the first instance and if he fails to do so, it cannot be done in reply;

· ensure that the answer a witness gives to a question during the examination must be based upon a point of fact and not a point of law.

4. EVIDENCE TENDERED IN EXAMINATION-IN-CHIEF:

The witnesses an advocate calls must enable the advocate achieve the objectives of examination-in- chief. The key objectives are to ensure that the evidence the witness presents to Court should be:

a) admissible;

b) legally sufficient to meet the burden of proof;

c) understood and remembered;

d) able to create a logical, complete and clear picture of the case;

e) convincing, persuasive and credible;

f) able to withstand cross-examination;

g) anticipatory and contradictory of evidence that the defence will present;

h) logical, complete and coherent theory of an advocate’s case;

i) used to support another so that a seamless cloth may be woven of the proven fact.

5. LEGAL REQUIREMENTS FOR AN EXAMINATION-IN-CHIEF:

a) Competency of your witness: A witness must be competent to testify. To qualify as competent, a witness must:

i. understanding the nature and obligation of the oath or affirmation to tell the truth;

ii. have knowledge of the relevant event;

iii. recollect (memory) the relevant event; and

iv. have the ability to communicate.

b) Orally in an open Court: Order 18, Rule 3 of the Civil Procedure Rules, 2010 provides that the evidence of the witnesses in attendance shall be taken orally in an open Court in the presence of and under the personal direction and superintendence of a Judge.

c) Procedure under criminal law: The following are the provisions in relation to examination-in-chief under the Criminal Procedure Code, Cap. 75:

i. Part 6: Procedure of trials before Subordinate Courts

ii. Part 9: Procedure of trials before the High Court.

iii. Section 208(1): If an accused person does not admit the truth of the charge, the Court shall proceed to hear the complainant and his witnesses and other evidence (if any).

iv. Section 300: An advocate for the prosecution shall open the case against the accused person, and shall call witnesses and adduce evidence in support of the charge.

d) Leading questions: Section 150 of the Evidence Act, Cap 80 provides that leading questions should not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the Court. Exceptions - the Court can only permit leading questions as to matters which:

i. are introductory or undisputed: An advocate will generally know from pleadings or committal papers what is in dispute;

ii. have in its opinion been already sufficiently proved;

iii. have been consented upon with the opponent agrees: Sometimes, there are parts of a case where little is in issue. Thus, to save time, both parties may agree in advance;

iv. contain indisputable facts: Some things are obvious and incontrovertible and everyone knows them to be true. An advocate can ask leading questions in such matters;

v. an advocate expects to get a denial: An advocate can ask leading questions in such matters since there is no choice. For e.g., were you in KFC Restaurant on the night of June 3rd 2017? Yes or No.

vi. Where the witness is hostile to the examiner, or reluctant or unwilling to testify.

Section 149 of the Act defines the term ‘leading question’ as any question suggesting the answer which the person putting it wishes or expects to receive, or suggesting a disputed fact as to which the witness is to testify. For example, Were you at Duffy's bar on the night of April 20th 2017? The answer is either a "yes" or "no." The same question in a non-leading form may be, Where were you on the night of April 20th 2017?

e) Relevance of a witness' testimony: A witness' testimony must be relevant.

f) Authenticity of matters of evidence: This will show that the item in question is what its proponent claims it is.

g) Proper evidentiary foundation or predicate for the admissibility of the evidence: Certain items of evidence require special foundations to establish admissibility. For e.g., if the evidence is hearsay and thus, presumptively inadmissible prima facie, such evidence can only be admissible if it is established under one of the hearsay exceptions.

6. STRATEGIES TO BE INVOKED IN EXAMINATION-IN-CHIEF:

An advocate may employ the following strategies in order to achieve the goals and objectives of carrying out an examination-in-chief:

· Short, open questions: An advocate should avoid compound questions and instead ask short, open questions.

· One fact per question: An advocate should also ask one fact per question.

· Use transitional questions: An advocate should question that are transitional in nature.

· Use body movements: to explain an important point.

· Outline: The entire process of examination-in-chief must look impressive and spontaneous.

· Eye contact: An advocate must maintain an eye contact with the Judge/Magistrate.

· Clarity: The questions put to the witnesses should be clear, only one new fact to each question.

· Ambiguous questions: An advocate should avoid vague and ambiguous questions.

· Build evidentiary bridges: There should be a connection between witness evidence presented before the Court.

· Phrases: There should be proper use of phrases to connect the matter in issue.

· Stressing of important things: An advocate should stress/repeat on certain important issues.

· Witness character: An advocate should try to mirror the good characteristics of a witness in an effort to build his/her credibility.

· Foundation for exhibit: An advocate should authenticate and lay a solid foundation for any exhibit to be produced. This enhances persuasion of a Judge and further ensures smooth introduction of tangible exhibits.

· Witness’ personal knowledge: An advocate should ensure that an expert witness speaks from personal knowledge while, lay witnesses can give lay opinions based on their personal perception but they should not draw conclusions that call for specialized knowledge.

· Potential cross-examination questions: An advocate should deflate, rebut, or ask potential questions which may crop up during cross examination.

· Open ended questions: An advocate should utilize open ended questions (non-leading questions) in addressing important parts of the case, for instance, the use of words i.e., what, when, who, where, why and how helps in description of an issue.

· Try to conserve time: Time can be conserved by eliminating unnecessary discussions.

· Controlling witnesses: An advocate should control witnesses by either directly advising that for e.g.,

that Magistrate is writing, or by using hand gestures for e.g., hand up – stop, hand down – continue.


· Use visual aids.

· Avoiding negative, lawyerly, complex questions.

· Using simple language and vocabulary.

· Be organized.

· Voice projection: An advocate should be laudable in the Court and the pace s/he adopts should be consistent. Pausing whenever necessary is important.

· Focusing on relevant matters.

· Ensuring good delivery of points.

· Having passion for the case

· Facial expressions and posture should be superb.

· Avoidance of distracting gestures and verbal habits.


CROSS EXAMINATION

1. INTRODUCTION:

· Section 145(2) of the Evidence Act, Cap 80 defines the term ‘cross-examination’ as the examination of a witness by an adverse party. In other words, it is the questioning of a witness by a party other than the one who called him to testify.

· Cross examination is preceded by examination-in-chief. In some instances, cross-examination can be after re-examination, whereby the witness is questioned again by the prosecutor or party who called the witness to clarify points brought up in cross-examination which might be damaging to the his case.

· Cross-examination ensures that the trial is fair and that information is truly out on the table.2

2. TYPES OF CROSS EXAMINATION:

a) Supportive (concession based) cross–examination: This type of cross-examination is employed when an advocate intends to ask questions and get answers that support and advance his/her case.

b) Discrediting cross-examination: This occurs when an advocate attempts to discredit the believability of a witness’ factual testimony by showing that it doesn‘t match with common sense and/or with what others say. It can be used to show what the witness does not know and to impeach the witness.

3. STATUTORY BASIS:

· Fair hearing: Article 50(2)(k) of the Constitution of Kenya, 2010 provides that every accused person has the right to a fair trial which includes the right to adduce and challenge evidence.

· Power to order discovery: Section 22(b) of the Civil Procedure Act, Cap 21 provides that the Court on its own motion, or on application by a party to issue summonses to persons who are required to produce evidence or be examined on the documentary evidence they have given.

· Objection: Order 18, Rule 6 of the Civil Procedure Rules, 2010 provides that where any question put to a witness is objected to by a party or his advocate, and the Court allows the same to be put, the Judge shall take down the question, the answer, the objection, and the name of the person making it.

· The Criminal Procedure Code, Cap. 75 provides:

a) Right to summon witnesses, or examine person present: Section 150 provides that that the prosecutor, or the advocate for the prosecution, or the defendant, or his advocate shall have the right to cross-examine any person, and the Court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness.

b) Putting the accused to his defence: Section 211 (1) states that at the close of prosecution case, if the Court finds the accused person has a case to answer, it will put the accused to his defence and if he chooses to give evidence on oath in the witness box he will be cross-examined on evidence given so will his witnesses.

c) Cross-examination of witnesses for prosecution: Section 302 of the CrPC provides that the witnesses called for the prosecution shall be subject to cross-examination by the accused person or his advocate, and to re-examination by the advocate for the prosecution.

d) Case for the defence: Section 307(1) of the CrPC provides that the accused person may give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case.

· The Evidence Act, Cap. 80 provides:

a) Witness to character: Section 148 provides that a witness to character may be cross-examined and re-examined.

b) Leading questions: Section 149 and 151 provides that any question suggesting the answer which the person putting it wishes or expects to receive, or suggesting a disputed fact as to which the witness is to testify, is a leading question. Leading questions may be asked in cross-examination.

c) Cross-examination as to previous written statements: Under Section 153, a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question.

d) Cross-examination as to credibility: Section 154 and 163 a witness may be asked questions to:

i. test his accuracy, veracity or credibility;

ii. discover who he is and what is his position in life;

iii. shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

iv. Bolstering a client’s case: Not all cross examination is directed towards discrediting or impeaching a witness. An advocate can use the witness to ratify the important aspects of a client‘s case.

4. RISKS IN CROSS-EXAMINATION:

a) Witness may become uncooperative or hostile.

b) Witnesses may add strength and sympathy to adversary’s case.

c) Witness may decide to fill in gaps.

d) The risks are cured by re-examination.

5. THE LAW OF CROSS-EXAMINATION: An advocate should:

a) be brief;

b) May ask leading questions;

c) limit to what was said in examination-in-chief except where credibility of a witness is in issue. In other words, where an advocate establishes that a witness’ given evidence during examination-in-chief is not harmful, an advocate should conduct constructive cross-examination showing that s/he is to be trusted. However, if a witness’ testimony is harmful to an advocate’s case, then in cross-examination an advocate should seek to challenge his/her evidence as being inconsistent, improbable or unrealistic.

d) avoid arguing with witness (instead insist on an opinion, not fact);

e) not intimidate by gestures, shouting, badgering, bullying;

f) not mislead the witness (by using tricky questions);

g) not assume (or fill in) facts;

h) avoid compound questions;

i) not get personal;

j) not angry when a witness does not want to agree with the advocate, or when a witness misunderstands the questions, or s/he gives evasive answers, etc.

k) stop when s/he gets what he wants;

l) never ask a witness to ‘explain’ or ‘why’ of for ‘help’ in cross-examination;

m) reserve comments for submissions;

n) ask one thing at a time;

o) not “put it to “ a witness;

p) not ask bounce off answer on a witness to trier of fact.

6. PURPOSES OF CROSS-EXAMINATION: It is meant to:

a) repair or minimise damage;

b) enhance one’s case;

c) detract the opponent’s case;

d) establish foundation for a document;

e) discredit evidence given in chief;

f) discredit the witness as a person;

g) reflect on credibility of another witness.

7. ORGANISATION PRINCIPLES IN CROSS-EXAMINATION:

· Cross-examination is telling a client’s story through the opponent.

· It is not time to get new information; it is to enhance or establish facts an advocate already has.

· An advocate should:

a) work through innuendo and implication;

b) not necessarily have to start strong;

c) use topical organisation;

d) give details first and then build up incrementally;

e) scatter the circumstantial evidence: An advocate should not show a witness the killer weapon s/he has;

f) spare the points s/he wants to make for the end;

g) ensure that the last point is admissible, central to the theory of a case, evoke the theme, undeniable;

h) start with a conviction.

8. CLASSIC FORMAT FOR CROSS-EXAMINATION:

a) Start friendly by asking non-threatening questions.



b) Affirmative questions should then be asked i.e., questions that build an advocate’s case, not destroy opponent’s.

c) Information that cannot be controverted should then be asked.

d) Information that challenges should then be asked.

e) Hostile information which confronts a witness directly should then be asked.

9. GUIDELINES TO AN EFFECTIVE CROSS-EXAMINATION:

a) Preparation: Proper preparation is the key to success in cross-examination. Proper preparation involves collecting as much background information on the circumstances as possible from the client. It also involves a thorough reading of the pleadings, charge-sheet, witness statements to the police, as well as a perusal and examination of the various reports, documents and exhibits that the prosecution intends to rely on. A properly prepared cross-examiner:

i. is able to lead a witness down a pre-selected path to obtain vital information to his/her case or defence;

ii. understands which points s/he ought to rebut and have his own theory of the case;

iii. is able to devise a strategy for use in case an unexpected response arises;

iv. will jot down the points of cross-examination rather than the whole questions themselves;

v. will take note of the behavior and answers being given by the witness.

b) Having a goal for effective cross-examination: A person carrying out cross-examination must identify and keep in mind the goal s/he intends to establish in his cross-examination. The primary goals of cross-examination may include pointing out the inconsistencies in the witness testimony, impeaching the witness, using the witness to corroborate the facts in one’s client’s case, etc.

c) Having a plan for cross-examination: The best effective method of reaching the goal of cross examination is by having a plan to be used in establishing the basic points to be established in cross- examination. It also helps in identifying possible areas which must be covered in cross-examination. Cross-examination questions should be planned and organized in units (segments/blocks) by subject matter rather than in the chronological order often used with direct examination.

d) Keeping it simple: When devising a plan for cross-examination, it must be kept simple. An advocate should not include complicated questions to the witness as this may only lead to confusion. Repetition of each answer as a preface to the next question breaks the rhythm of the cross-examination.

e) Control of a witness: An advocate should ask leading questions to take control of a witness. S/he should ensure that such questions are all answered by the witness. Open ended questions i.e., why, who, what should be avoided as it gives the witness control of the answer.

f) Knowing the rules: Cross-examination is conducted within the ambits of the rules of evidence. It is therefore important to follow the rules of admissibility of evidence so as to maneuver without technicalities like objections from the opposing counsel.

g) Stopping when necessary: An advocate should start cross-examination on a high note and finish strong since the attention of the Judge/Magistrate is usually at the beginning and towards the end. Once you have made the significant point, end the cross-examination.

10. TECHNIQUES FOR CROSS-EXAMINATION: An advocate should:

a) ask short, open questions: An advocate should remember that s/he has the attention of the Court. S/he should try to make a witness explain and verify facts which then reveals weaknesses in the facts s/he earlier stated.

b) avoid compound questions;

c) ask leading questions.

d) use propositions i.e., put across to a in interrogative form a fact s/he already knows;

e) be organized;

f) focus on relevant matters;

g) ensure good delivery of the matter;

h) have passion for the case;

i) use simple language and vocabulary;

j) ensure facial expressions and posture is superb;

k) avoid distracting gestures and verbal habits;

l) his/her voice is well projected;

m) maintain eye contact;

n) in planning:

· avoid reading pre-written questions;

· use an outline, topic, sub-topics, e.g., i.) normal day - morning, afternoon, evening; ii) day of incident - morning, time of incident; iii) events at scene - weather conditions; which people were present; their temperament; iv) post incident - who came; reporting to authorities; treatment.

o) Form of questions: An advocate should ask incremental questions, or a sequence of questions to establish an impact, or to show a relationship, or to “scatter” a witness, or to get a commitment, or to create an “enclosure” from which a witness cannot escape. Besides, an advocate should listen to a witness and insist on an answer. Further, an advocate should repeat similar basic questions in a different way to get different responses which can be used against a witness. However, if the questions are too repetitive as to make the witness nervous, the opposing attorney may accuse the cross-examiner of badgering the witness.

The following are questions that can lead to trouble:

· Non-leading questions.

· ‘Why’ or explanation questions;

· ‘Fishing’ questions in a hope of getting something.

· Long questions where a witness forgets what was being asked.

· ‘Gap’ questions meant to fill an intermediate issue.

· Using ‘you testified’ repeatedly.

· Characterizing and making conclusions.

p) Regaining control: Where witness:

· has refused to agree: determine why s/he has refused to agree i.e., an advocate may be wrong on facts, otherwise go back to basic, agreed on facts.

· is out to explain: determine why are they out to explain, or ask a totally new question to move on.



· is uncooperative: ask for help of the Judge/Magistrate, or keep asking that the question, or confront them with their won words.

q) Adopt the following starting lines for cross-examination:

· You agree with me … It is true …

· Confirm that … You have testified that …

· It is your evidence that … It is a fact that …

· .......... that is true?........................................................... that is correct or isn’t it so?

r) An advocate should keep cross-examination to only points which support his/her theory of the case. This strengthens an advocate’s argument. Moreover, s/he should keep the strongest points at the beginning and at end of cross-examination since these are the points likely to remain in the mind of the Judge/Magistrate.


RE-EXAMINATION, EXHIBITS AND IMPEACHMENT

1. EXHIBITS: STATUTORY BASIS

· Admitted documents forms of suit record: Order 14 Rule 3 of the Civil Procedure Rules, 2010 provides that every document admitted in evidence shall form part of the record of the suit.

· The Criminal Procedure Code, Cap 75 provides:

a) Procedure on plea of not guilty: Under Section 208(1), if the accused person does not admit the truth of the charge, the Court shall proceed to hear the complainant and his witnesses and other evidence (if any).

b) Opening of case for prosecution: Under Section 300, the advocate for the prosecution shall open the case against the accused person, and shall call witnesses and adduce evidence in support of the charge.

· The Evidence Act, Cap 80 provides:

a) General restriction of admissibility of evidence: Under Section 5 of the Act, no evidence can be given in any suit or proceeding except evidence of the existence or non-existence of a fact in issue, and of any other fact declared by any provision of the Act to be relevant.

b) Admissibility of documentary evidence as to facts in issue: Under Section 35 of the Act in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the maker of the statement:

i. had personal knowledge of the matters dealt with by the statement; or

ii. is called as a witness in the proceedings. However, there is no need to call the maker of the statement if s/he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the Court unreasonable.

c) Entries in books of account: Under Section 37, entries in books of account regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire.

d) Entries in public records: Under Section 38, an entry in any public or other official book, register or record, stating a fact in issue or a relevant fact, and made by a public servant in the discharge of his official duty, is admissible.

e) Statements, etc., in maps, charts and plans: Under Section 39, statements and representations of facts in issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of any Government in the Commonwealth, are admissible.

f) Statements of fact contained in laws and official gazettes, etc. Under Section 40, when the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it shall be admissible which is made in any written law of Kenya, or in any notice purporting to be made in pursuance of any such written law, where the law or notice (as the case may be) purports to be printed by the Government Printer.

g) Statements as to law contained in books: Under Section 41, when the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is admissible.

h) Proof of contents of documents: Under Section 64, the contents of documents may be proved either by primary or by secondary evidence.

i) Photographic evidence—admissibility of certificate: Under Section 78, in criminal proceedings a certificate given under the hand of an officer appointed by order of the Director of Public Prosecutions, who shall have prepared a photographic print or a photographic enlargement from exposed film submitted to him, shall be admissible.

j) Electronic records: Part 7 of the Act provides that the contents of electronic records may be proved in accordance with the provisions of Section 106B of the Act.

2. STEPS OF ADMISSION OF EXHIBITS: An advocate should:

a) lay the foundation: One can state for instance, ‘you have earlier testified about …’

b) show the exhibit to the Judge, as it be marked for identification (For civil, refer to page in bundle);

c) show opponent’s counsel, ask if s/he has any objection;

d) ask a witness how s/he recognises/identifies it.

e) production/tendering (ask MFI for it to be marked as Exhibit). The marking is done by Court Clerk.

f) use the exhibit (get the meat out of it).

3. RE-EXAMINATION:

3.1 INTRODUCTION:

· Re-examination is a way of saying that the cross-examination has some weaknesses. Thus, its purpose is to:

a) correct the mistakes made in cross examination;

b) salvage a case;

c) clarify confusing points;

d) try and shift the Court‘s probable inference by explaining a distorted testimony to favor one’s case.

· The general principles are like that of examination-in-chief (see above).

· Open ended questions are asked at this stage.

· If a witness has done irreparable damage during cross-examination, an advocate should not re-examine.

· If a counsel wishes to introduce something new during re-examination, s/he must first seek leave of Court.

· Re-examination is completely optional. An advocate does not need to do it at all.

· Limitation: Questions are asked on only issues that arose in cross-examination.

3.2 STATUTORY BASIS OF RE-EXAMINATION:

· Power to summon witnesses, or examine person present: Section 150 of the Criminal Procedure Code, Cap 75 provides that a Court may, at any stage of a trial or other proceeding under the Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

· Cross-examination of witnesses for prosecution: Under Section 150 of the CrPC, a witnesses called for the prosecution shall be subject to cross-examination by the accused person or his advocate, and to re-examination by the advocate for the prosecution.

· Case for the defence: Section 307(1) of the CrPC provides that the accused person may give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross- examination and re-examination (if any) may sum up his case.

· Like in examination-in-chief:

a) witness must be legally competent to testify;

b) an advocate should use non-leading questions (open ended).

c) not testify in narrative;

d) generally offer fact, not opinion;

e) witnesses can refresh their memory;

f) an advocate should also:

i. look at the credibility and explanations given by a witness;

ii. exclude unprovables, implausible, impeachables, door openers, etc.

iii. be organized;

iv. focus on relevant matters;

v. ensure good delivery;

vi. have passion for the case;

vii. use simple language and vocabulary;

viii. ensure facial expressions and posture is superb;

ix. avoid distracting gestures and verbal habits;

x. maintain eye contact

xi. ensure his/her voice is well projected.

4. IMPEACHMENT OF WITNESSES:

· Impeachment of witnesses refers to challenging the credibility of a witness. A witness may be impeached in the following ways by the adverse party or with the consent of the Court, by the party who calls him:



a) Bias: An witness may show where s/he has an interest in the outcome of the case. An advocate should be able to point out this.

b) Mental or physical impairment: This may affect a witness’ ability to perceive, recollect or link facts.

c) Contradiction in the testimony.

d) Prior inconsistency: This is by proof of former statements, whether written or oral, inconsistent with any part of his evidence which is liable to be contradicted.

e) Character: Perhaps where the witness is a habitual liar.

f) Previous convictions.

g) By the evidence: of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit.

h) By proof that the witness has been bribed: or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence.

· Procedure for impeachment: [The three Cs of impeachment, alternatively, the three Rs]

a) Confirm: the particular aspect of the testimony that the witness gave in Court in the evidence-in- chief. This is done by asking the witness to repeat the relevant part of the testimony (Repeat)

b) Credit: the witness by way of establishing the reliability of the document that you are about to use to impeach the witness. Ask questions tending to show that the document you are about to refer to is a reliable document. Read the statements in the document yourself and ask the witness to confirm the veracity of your reading (Reliability of the document).

c) Confront: the witness with the inconsistent statement (Read verbatim).

d) Don’t add “E” (Explain).

CLOSING ARGUMENT/STATEMENT

1. INTRODUCTION:

· Closing argument is a trial lawyer’s final statement to the fact finder in which s/he asks the Court to consider the evidence and find for them. This is the moment to persuade the Court to rule in his/her favour.

2. STATUTORY BASIS ON CLOSING ARGUMENT/ STATEMENT:

· Statement and production of evidence: Order 18, Rule 2 of The Civil Procedure Rules, 2010 provides that after the party having the right to begin states his/her case, the other party shall then state his case and produce his evidence in reply, and may then address the Court generally on the case. The party beginning may then reply. The court may in its discretion limit the time allowed for addresses by the parties or their advocates.

· Order of speeches: Section 213 of the Criminal Procedure Code, Cap. 75 provides that the prosecutor or his advocate and the accused and his advocate are entitled to address the subordinate Court in the same manner and order as in a trial before the High Court

· Close of case for prosecution: Section 306(1) and (3) of the CrPC also provides that when the evidence of the witnesses for the prosecution has been concluded, the Court, if it considers that there is no evidence that the accused committed the offence shall, after hearing, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty. Where the accused person says that s/he does not intend to give evidence, or make an unsworn statement, then the advocate for the prosecution may sum up the case against the accused person.

· Case for the defence: Section 307(1) of the CrPC provides that the accused person may give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross- examination and re-examination (if any) may sum up his case.

· Where accused adduces no evidence: Section 311 of the CrPC provides that if the accused person says that he does not intend to give evidence and the Court considers that there is evidence that he committed the offence, the advocate for the prosecution shall then sum up the case against the accused person, and the Court shall then call on the accused person personally or by his advocate to address the Court on his own behalf.

3. NATURE OF CLOSING ARGUMENT: a) It is an argument, b) It is post the fact, c) It is based on what has been adduced (evidence, exhibits).

4. ROLE OF CLOSING ARGUMENT/ STATEMENT: It is meant to:

a) consolidate all the evidence that has been adduced;

b) link together the components of the trial;

c) argue out the case from the client’s perspective;

d) make the prayer of what an advocate is seeking;

e) tell the entire story without interruption and constraining formalities;

f) its success depends on success of previous stages of trial;

g) it must complement opening statement and reflect and encompass the evidence in the case.

5. THEORY, THEME AND STORY ARC OF CLOSING ARGUMENT/ STATEMENT:

· Theory: The theory should be:

a) logical: An advocate should show movement from fact to conclusion;

b) believable: This is by being based on admissions by opposite side, undisputed facts, common sense and experience and credibility of witnesses;

c) legally sufficient: It must address both the law and the facts.

· Theme in closing argument: An advocate should:

a) have it constantly present in closing argument;

b) start with it; use it in each segment;

c) avoid it becoming a monotonous by repetition. Theme serves role of moral persuasion.

· Story arc in closing argument: The story arc:

a) establishes client as the centre of the whole story;

b) takes advantage of human desire for equilibrium and order;

c) engages fact finder as the “hero” to rectify the disruption and save client from further injustice. Example: “Things were fine, everything going on well....................................................................... In between, something drastic and disruptive

happened. The Court needs to restore the client as far as is possible to the state before the disruption.”

6. ELEMENTS OF THE CLOSING ARGUMENT:

a) Conclusions: It flows from the evidence.

b) Inferences: A deduction drawn from a known fact.

c) Details and circumstantial evidence: that was earlier gathered in examination in chief and in cross examination.

d) Analogies: An advocate should draw from everyday human behaviour. Comparison to widely understood experience or activity. Caution: S/he should ensure they are “air tight”

e) Allusions: A literary reference to add to persuasive force. In past mostly drawn from Shakespeare and the Bible.

f) Stories: To humanize the client.

g) Credibility and motive: Closing argument is an opportunity to comment on and compare motive and credibility of a witness. It is here that one can refer to what came from impeachment. Besides, one can compare the testimony that came from different witnesses. Motive can be commented upon from either what came out directly as a fact or from a logical inference.

h) Weight and evidence: Here an advocate will assert why:

· one version is preferable to another;

· some facts should be accepted and others rejected, and

· one piece of evidence is stronger than the other.

i) Demeanour: This is based on an observable fact. An advocate can point out i.e., the delay or refusal to answer question; the sudden loss of composure (fidgeting) and sudden loss of temper. However, since it is based on perception, an advocate need to bear in mind that the fact finder may get a different perception.

j) Refutation: This is an opportunity to refute opposing positions. An advocate can thus point out errors, inconsistencies, implausibilities and contradictions.

k) Application of the law: An advocate needs to apply the law to the facts. This is the most extensive part of trial when talking about the law.

l) Moral appeal: It is explaining how and why a client’s position makes sense. This is the moment an advocate elaborates on the moral theme of the case. It expounds of the shared values, civic virtues and common motivations,

7. STEPS IN CLOSING ARGUMENT: IRAC

a) Issues

b) Rule (Law)

c) Application of the law

d) Conclusion.

8. STRUCTURE OF CLOSING ARGUMENT:

a) Topical organisation:

i. Issues - Factual and legal issues.

ii. Elements - If Criminal, elements of charge. If Civil, the elements of Negligence.

iii. If applicable, what instructions Judge gave to Jury or to the assessors.

iv. What is the turning point of the case?

v. Alternative structure – a) Chronological, b) Witness listing.

b) Other organising tools:

i. Start strong, end strong by following the principle of primacy and recency.

ii. Affirmative case first – An advocate should build his/her own case first.

iii. Cluster circumstantial evidence - An advocate should accumulate details.

iv. An advocate should “bury” (minimize) his/her concessions in the middle of the argument;

v. An advocate should weave witness credibility in the story

vi. S/he should address the damages due to client if is a claim for damages case.

9. CONTENT OF CLOSING ARGUMENT:

a) Tell a persuasive story:

i. Known facts - what happened?

ii. Reasons - why did it happen?

iii. Credible witnesses - who should be believed?

iv. Supportive details - how can we be sure? Common sense - Is it plausible?

b) Tie up cross-examination.

c) Comment on promises made during opening statement.

d) Resolve problems and weaknesses.

e) Discuss damages.

10. DELIVERY AND TECHNIQUE IN CLOSING ARGUMENT: An advocate should:

a) start strong, disclose weaknesses in the middle and end strong: by following the principle of primacy and recency. An advocate should tell the Judge how strong his/her case is and show him why he deserves to win.

b) not read or memorise: S/he should try to minimize how much time s/he spends looking at notes;

c) maintain eye contact: S/he should make sure that s/he is making eye contact with the person s/he wants to persuade (Judge).

d) use an outline as prompts;

e) use body and hand movements to make emphasis;

f) avoid aimless pacing or distractive movement;

g) change speed, tone, inflection, volume. S/he should not be too quick or too loud;

h) not be insincere;

i) use emotion at moral dimensions of the case;

j) use visual aids e.g., weapons, models, photographs, maps, charts, maps and samples;

k) use headlines i.e., negligence, damages;

l) use simple, active language;

m) theme: An advocate should use determined theme and persuasively articulate his/her theory of the case;

n) the law: An advocate should show knowledge of the law by: a) arguing the law effectively, b) appropriately citing persuasive authorities, c) acknowledging opposing authorities, d) distinguishing it,

e) or argue for change in the law.

o) prayer: S/he should tell the Court what s/he wants but, not beg. In a criminal case, s/he should ask for an acquittal or a conviction. An advocate should remember that s/he is asking for justice and not sympathy.

p) witnesses: argue the credibility of witnesses and if they are many, s/he should put them in clusters. Link the cross-examination and impeachment.

q) show why he should win: based on the evidence produced, or by relating the facts to the law

r) be organized.

s) voice projection: An advocate should be laudable in the Court and the pace s/he adopts should be consistent. Pausing whenever necessary is important.

t) focuse on relevant matters;

u) ensure good delivery of points;

v) avoid distracting gestures and verbal habits;

w) have passion for the case;

x) facial expressions and posture should be superb.

11. ETHICS IN CLOSING ARGUMENT: An advocate should avoid:

a) asserting personal beliefs;

b) appealing to prejudice or bigotry - racial, religious, ethnic, gender discrimination;

c) misstating the evidence;

d) misstating the law;

e) misusing evidence;

f) appealing to Jury/Fact finder’s personal interest;

g) appealing to emotion, sympathy, passion - basing on stereotypes, physical appearance.

OBJECTIONS

1. INTRODUCTION:

· An objection is generally a motion asking a Judge to exclude evidence that the other side is seeking to offer.

· An objection may be:

a) by an interjection when proceedings are on-going mainly during examination-in-chief or cross- examination;

b) in the form of a motion seeking that the entire suit be not entertained. This is referred to as a ‘preliminary objection (P.O)’;

c) raised by an accused person in a trial on indictment. This is referred to as ‘objection to indictment.’

· The accused may object on legal grounds i.e., where the indictment contravenes or fails to comply with the law, or on a breach of the fundamental right of an accused person prior to arraignment in Court. This is raised by an application to quash the indictment or to declare the trial a nullity.

2. PURPOSE AND FUNCTION OF OBJECTIONS: Objections are utilized in a trial to:

a) ensure that parties prosecute and defend their cases in accordance to the law. This is both on procedural and substantive law;

b) ensure that witnesses give evidence without intimidation or harassment by the opposing advocate;

c) help to predicate error on a court‘s evidentiary ruling;

d) help to prevent a court from entertaining a matter that it ought not to;

e) ensure that the court does not entertain a trial that is otherwise a nullity;

f) strike out defective pleadings;

g) preclude inadmissible evidence from being presented to Court.

3. STATUTORY BASIS TO OBJECTIONS:

· Fair hearing: Article 50 of the Constitution of Kenya, 2010 also provides that lack of detail in charge, failure by prosecution to provide evidence wish to rely on in advance, offence not being a crime at time was committed, autrefois acquit or convict, may call for objection.

· Objections to jurisdiction: Section 16 of Civil Procedure Act, Cap. 21 provides that no objection as to the place of suing shall be allowed on appeal unless such objection was taken in the court of first instance and there has been a consequent failure of justice.

· Res Judicata: Section 7 of the Civil Procedure Act, Cap. 21 provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

· Questions objected to and allowed by Court: Order 18, Rule 6 of the Civil Procedure Rules, 2010 provides that where any question put to a witness is objected to by a party or his advocate, and the Court allows the same to be put, the Judge shall take down the question, the answer, the objection, and the name of the person making it.

· Grounds of opposition to application in High Court: Order 51, Rule 14(1) provides that any respondent who wishes to oppose any application may file any one or a combination of the following documents:

a) a notice preliminary objection: and/or;

b) replying affidavit; and/or

c) a statement of grounds of opposition.

· Defectiveness of charge: Section 134-137 of the Criminal Procedure Code, Cap.75 provide that failure to disclose offence; failure to provide particulars; duplicity may call for objection.

4. TIMING, MAKING OF OBJECTIONS:

In deciding whether or not to object, the qualities of a good trial advocate will come into play and more particularly the following:

a) Stand, state the grounds for objecting: This is very important.

b) Clarity of thought and language: An advocate must have clarity of thought and language so as to be able to put forward and respond to objections clearly and logically in Court.

c) Confidence and courage: An advocate should be confident and put up a civilized warfare in defending or raising a trial objection rather than sit back without putting up a fair fight.

d) Alertness: An advocate must be alert during trial so as to point out when to raise an objection. S/he should also know when to expect objections against his/her client. This virtue is achieved by keenly following evidence and being alert to the mind of the Court.

e) Preparedness: To be able to alleviate situations of surprise in the event that a trial objection is raised against a client‘s case, an advocate needs to be well prepared. Moreover, by researching the law well, s/he gets to raise informed and timely trial objections.

f) Professionalism: This demands that an advocate knows the rules of practice and evidence so as to prevent objections against his/her ill advised choice of action. The rules of ethics and conduct also come in handy to enable one raise well founded objections in a respectful and professional manner. Besides, professionalism ensures that advocates do not raise objections actuated by malice. Objections raised solely for the purpose of slowing down, impeding justice or protecting witnesses is unethical. The advocate should not raise emotions against the other or go personal. The manner and tone of language to be used in raising the objection is important. An advocate ought to rise up and politely but confidently say such words as … “your honour, counsel is leading the witness.”

g) Sound judgment: It enables an advocate makes appropriate tactical decisions as to when or not to raise objections, or how to respond to objections. Raising objections should not be too early or too late. An advocate ought to be able to think on his/her feet. S/he should make a quick cost benefit analysis, to avoid a situation where s/he wins the battle but ends up losing the war.

Factors to consider in deciding whether or not to object:

i. Relevance: An advocate should look at the opposing party’s proposed evidence to determine whether it tends to prove the existence or non-existence of a fact in issue.

ii. Reliability: Second hand information, for example hearsay, would normally be excluded since it is not as reliable as first hand information. Section 63 of the Evidence Act provides that oral evidence must in all cases be direct evidence i.e., evidence that a person who claims has seen, heard, etc.

iii. Legality: Evidence which is relevant but is obtained illegally may be objected to. For instance, a confession that is illegally obtained in criminal cases will not be admissible as evidence. A confession obtained by inducement, threat or promise will also not be admissible, unless to the opinion of the Court, such inducement, threat or promise is removed.3

5. RESPONDING TO OBJECTIONS:

· Most of the time, a Judge will rule without hearing from opposing counsel. However, a Judge may invite the counsel to respond and may:

i. call for substantive arguments on the point;

ii. call for a specific response;

iii. rule that there will be limited admissibility;

iv. conditionally admit evidence based on offer by advocate to avail a witness or explanation. An advocate should watch out for non-responsiveness by the trier of fact.

· If an advocate’s opponent objects, an advocate should:

a) just pause, think, respond and wait for the ruling; or

b) rephrase the question if the matter is absolutely or obviously necessary so as to avoid the objectionable material; or

c) smoothly transition to another section of the testimony.

d) repeat the entire question for the witness for clarity purpose if an opponent’s objection is overruled.

6. PREPARATION AND PROCEDURE:

· Objections ought to be timely and specific: This means that an objection should be raised before the inadmissible evidence is produced and should be specifically attributed to a particular issue, statute or rule of evidence.

· In respect to preliminary objections: a party must file and serve a notice of the preliminary objection. In civil cases, a defence may have a paragraph to the effect that the defendant shall raise a preliminary objection at the hearing thereof on some stated grounds. That serves as sufficient notice. Service of the application to strike out a suit or pleading preliminarily also serves as notice of the preliminary objection.

· Parties are then given an opportunity to argue at the appointed time: The Court thereafter gives a ruling thereon, either overruling or sustaining the preliminary objection. Any aggrieved party is at liberty to appeal within the time stipulated and in accordance with the law.

· In respect to trial objections: the party wishing to raise the objection does so by simply standing and stating, “Objection, your honour/lordship.” An advocate should then succinctly explain why the trial objection is well founded. The Court will either rule on it immediately or require a response from the other party before ruling. This process should take place with utmost respect and with the use of a polite language.

· An advocate needs to have a rapid cognitive recognition: Rapid cognitive recognition entails:

i. firstly, researching on the matter or listening to the question/issue raised;

ii. secondly, recognizing a potential objection;

iii. thirdly, deciding whether to make the objection, and

iv. finally, making the objection.

7. ARGUING THE OBJECTION: An advocate:

a) can raise it from the bar;

b) can request to raise it in camera;

c) let the objector raise it, listen if judge will ask the other to respond;

d) avoid a two way argument between counsels that excludes the Judge and address the objection to the Court;

e) deliver it with conviction;

f) ensure there is a ruling on it, so that have it on record in case of appeal. Once ruling is made:

· For the one objected to: It is important to realise that is not the end; there is still a trial going on, remain alert, ensure the question is answered, especially if objection led to an interruption.

· For the objector: Remain alert and continue to scrutinize the testimony.

8. DECISIONS ON OBJECTIONS:

The court is required to make and give a decision on objections. For:

a) preliminary objections: the issues canvassed will usually require more time and research before a decision is arrived at. The Court will thus give the parties some date when it thinks fit to have a written ruling;

b) trial objections: the Court ought to make ruling instantly for purposes of expediency. This does not however preclude the Court from deferring the ruling to a given date. What is important is the weight of the objections both on legal and factual issues. In Republic v. Robert Gilbert Cholmondeley, the prosecution moved the Court under Section 60 of the Constitution for an order directing the defence to make a full disclosure of their witnesses, statements and copies of certain forensic reports that the defence intended to produce. The defence objected to the motion on the ground that such a motion intended to infringe the constitutional rights of the accused and that no reciprocity existed to warrant the defence discloses their witnesses and statements as the prosecution was required to do. The Judge adjourned the proceedings as he retired to consider a ruling.

c) execution matters in civil cases: Objections raised in relation to execution in civil cases, the Court makes the decision after due consideration of the arguments propounded by the parties and the evidence. This requires more time before ruling depending on the weight of the case.

9. COMMON OBJECTIONS: For proper understanding, it is important to classify objections into three categories, namely:

a) Preliminary objections: These are objections raised before the substantive matter is heard and determined on merit, only on a point of law. They can be raised where a:

i. pleading is defective for want of form;

ii. pleading breaches a mandatory statutory provision;

iii. suit is time barred.

A preliminary objection may be raised by a party in his/her pleading, pursuant to Order 6, Rule 7 of the Civil Procedure Rules, 2010.

Under Order 50, Rule 1, a party may raise a preliminary objection by way of a Notice of Motion. Section 16 of the Civil Procedure Act, Cap 21 requires that one makes an objection as to the place of suing in the Court of first instance since failure to do so, no such objection shall be allowed on appeal. It is important to note the following on preliminary objections:

i. Preliminary objections must be on a point of law: The Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd.,4 observed that a preliminary objection consists of a point of law which is clear and beyond doubt and which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.5 No preliminary objection can thus be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

ii. Particulars of preliminary objections must be stated: Where a party indicates that s/he intends to raise an objection on a point of law, s/he must state the particulars of the statutory provision upon which s/he relies to raise the objection.6

iii. Notice of preliminary objections: Any party who intends to raise a preliminary objection must give a sufficient and reasonable notice to the other party.7 The requirement of notice is not however necessary in matters before the Court of Appeal since matters before such Court are prosecuted in accordance to the Court of Appeal Rules.

iv. Purpose of preliminary objection: Preliminary objections:

· ensure that parties file their cases and defend the same in accordance to the mandatory requirements of the law;

· prevent abuse of the process of Court. This may arise in instances where a party files a defense that is a mere sham and fraught with mere denials.

v. Examples of preliminary objections: A preliminary objection may be raised:

· on the ground that the Court lacks jurisdiction to entertain the matter;

· as to the place of suing. This must be raised in the Court of first instance;

· where there is pending suit relating to the same parties and the same subject matter is before a Court of competent jurisdiction;8

· where the matter of the same facts between the same parties has previously been determined by a competent Court (res judicata).9

· where pleadings offend the rules of procedure on form and substance i.e., where a Notice of Motion is filed instead of Chamber Summons, or where a suit is commenced by way of a Plaint instead of an Originating Summons;

· where a suit is time barred. However, under the Limitation of Actions Act a party wishing to institute the same must first apply for the leave of the Court. Once leave is granted, then the party will be at liberty to file the matter.

b) Trial objections: These are broadly categorized into two:

i. Form objection: This deal with non-substantive issues. It relates to the procedure of the trial and is intended to remedy the manner in which an advocate questions a witness. For instance, an advocate asking a question that:

· is ambiguous or unintelligible: It is objectionable on the ground that it may take on more than one meaning;10

· is argumentative: This is a question asked to call for an argument in an answer and merely asks a witness to concede to inferences;

· has been asked and answered: This is raised when a witness has already answered a substantially similar question asked by the same advocate on the subject matter;

· assumes facts not in evidence: This is a question, which presumes unproved facts to be true. For e.g., when did you stop beating your wife? This is an assumption that one actually beat his wife, particularly where the actual act of beating has not been proved.

· is compound: This is where an advocate joins two or more questions ordinarily with the use of the words ‘or’ or ‘and’;

· is too general, broad, or indefinite: if it permits the witness to respond with testimony, which may be irrelevant or otherwise inadmissible;

· is leading: This is a question that suggests the answer the examining party desires;

· misstates the evidence or misquotes the witness: A question may misstate or misquote the testimony of a witness. Where the advocate adds or alters a statement from the witness, then one should be quick to object to the same as misquoting the witness;

· calls for a narrative answer: This is a question that invites the witness to narrate a series of occurrence, which may provide irrelevant or otherwise inadmissible testimony;

· calls for speculation: This is a question, which invites or causes a witness to speculate or answer on the basis of conjecture. It asks a witness to guess the answer rather than to rely on known facts i.e., where a witness is asked to give an opinion while s/he is not an expert;

· is indecent and scandalous: Under Section 159 of the Evidence Act, Cap 80, a Court may forbid any question or inquiry which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.

ii. Content objections: These relate to substantive evidence, either oral or documentary evidence. An advocate may invoke the applicable rules of evidence to exclude either the witness's anticipated answer or the introduction of an exhibit. Examples include:

· A question that invites hearsay: As a general rule, hearsay is inadmissible. Oral evidence must in all cases be direct evidence. The Evidence Act gives exceptions to the hearsay rule. These include evidence of dying declarations, expert opinions and documentary evidence of official records. Where such an exception does not exist, an advocate should object to questions inviting such evidence.

· A question that is irrelevant or immaterial: This is a question whose intent and purport is to elicit evidence which does not relate to facts in issue or relevant facts. The trial advocate should therefore ensure that he predicts that kind of evidence that may come forth from a witness and consider whether the same is relevant and admissible before raising an objection.

· Inadmissible opinion: A witness may be called to give an opinion. Section 48 of the Evidence Act, Cap 80 requires that where the Court invites a person to give an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting, or finger or other impressions, opinions upon such point are admissible if made by experts.

· Improper impeachment: An advocate can ask a question that impeaches on the credibility of a witness. However, an improper impeachment especially of character or which may be annoying, indecent and scandalous cannot be allowed.11

· Excluding secondary evidence: Section 67 of the Evidence Act, Cap 80 provides that documents must be proved by primary evidence unless secondary evidence is admissible under the Act. An advocate may therefore object to secondary evidence where its admission is not provided for.

· Inadmissible parole evidence: Section 98 of the Evidence Act states that no oral evidence may be given to contradict a written agreement. In case a witness is asked to give oral evidence which would in the circumstances contradict a written agreement, then an objection may be sustained.

· Illegally obtained evidence: A party will not be allowed to give evidence that was procured illegally.

· Evidence that may threaten State security: The Official Secrets Act, Cap 187 provides for the preservation of State secrets and State security. An advocate may object to evidence which in the circumstances may threaten State security, or would in the circumstances lead to disclosure of State secrets. An illustration is where investigations on Angloleasing were barred on the ground that they tended to question the manner in which the Departments of defence of Kenya carried on its business.

· Re-examination on matters not raised in cross-examination: An opposing party can raise an objection in that regard.

· Best Evidence Rule: This requires the most original source of evidence available. For example, instead of asking what the contents of a document are, one should ask for and look at the actual document itself.

· Instances of badgering: This is where the opposing party is antagonizing a witness to provoke a response. Section 160 of the Evidence Act gives the Court the discretion to forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.

· Introducing character evidence when it has not been brought in issue: In simple terms, the fact that the accused committed prior offences does not necessarily mean s/he committed the present offence. Each case should be treated independently on its own merits without prejudice to the accused. However the accused may bring his or her character in issue, for example, by alleging good conduct.

· Non-responsive answer: This is when a witness is evading a question and is not really answering it.

· Nothing pending: An objection may be raised normally when a witness continues speaking on irrelevant matters to a question posed.

· Privileged information: As a general rule, evidence which is privileged will not be admitted in evidence. Where the law protects a witness from answering questions which relate to some privileged information, then unless that protection ceases to exist, no question may be asked in respect thereof. A good example is the: a) doctor-patient privilege, b) privilege not to testify against spouse,12 c) advocate-client privilege,13 d) privilege of official communication,14 e) privilege for identity of informer,15 f) privilege against self-incrimination.16

iii. Post-trial objections: Objections during execution proceedings: A trial may have been conducted in which an advocate’s client was not a party to but the same affects his/her client’s property in the execution stage. An advocate must definitely object. ‘Post-trial objections’ are thus objections that arise during execution proceedings of a civil case. They are brought under Order 21, Rules 53-59 of the Civil Procedure Rules, 2010. The party who objects to the proceedings is called an objector.17 The objecting party takes out an application by way of ‘summons in chambers’ in the property give notice in writing to the decree holder and the Court of his objection to the attachment of such property. Upon receipt of such notice, the Court shall order a stay of the execution proceedings and shall call upon the attaching creditor, by notice in writing, within fifteen days to intimate to Court and the objector in writing whether he proposes to proceed with the attachment and execution there under in whole or in part.

Trial Advocacy- Appellate Advocacy Appellate advocacy v. Trial advocacy

Techniques of appellate advocacy

Competence of appeals

· For an appeal to be competent you must lodge a Notice of Appeal. The notice must be lodges within 14 days of the decision. One must also serve the notice on every person who is directly affected by that appeal within 7 days of lodging the appeal- Rule 76 Appeal Rules

· Rule 81 requires that an appeal must be lodges within 60 days of lodging the appeal notice. The appeal must consist of:


o Memorandum of appeal which is filed in quadruplicate

o Record of appeal also in quadruplicate

o Prescribed fee for lodging the appeal.

Memorandum of Appeal


· This sets out the grounds of appeal and Rule 84 is to the effect that in drafting to Memorandum one must be concise about what they are appealing about.



· The grounds must be drafted under distinct heads. In addition, the grounds must not be argumentative or in the narrative.



· You must also specify the points that they allege were wrongly decided matters of law of face.



· It must also state the nature of the order which one proposes to ask the court to make.


Record of appeal



· The contents are specified by Rule 85. It must contain certified copies of primary documents. The settled law is that if any of the primary documents are missing in certified form or present but not certified, the appeal will be struck out and one would have to appeal to lodge another record.


· The primary documents usually lodged include, but are not limited to:


o Pleadings

o Trial judges notes of the hearing

o Affidavit read and all documents put in evidence at hearing

o Judgement or order

o Certified copy of the decree or order

o Where leave to appeal is require, enclose the order giving leave

o The notice of appeal.


Trial Advocacy- Skeleton Arguments


What are Skeleton Arguments?


Skeleton arguments in Kenya


Format and content


· The heading should state the court in which the suit is in, the case number, the names of the parties to the suit and the title of the skeleton argument/submission.



· It must also state:


o the nature of the case generally, and the background facts insofar as they are relevant to the matter before the court



o A concise statement of your arguments which the party wishes to make. These should both define and confine the areas of controversy.



o Each argument should be followed by full references to the material to which the advocate will refer in support of it e.g. witness statement statutes and or authorities. In respect of each authority cited –



§ The proposition of law that the authority demonstrates or the relevance of the authority to that argument; and



§ The parts of the authority (identified by page or paragraph references) that support the proposition.



§ The citation is necessary for a proper presentation of that argument.



o Any other information the court will need or that which the advocate would expect to be taken down by the court during the hearing. This may include a list of persons who feature in the case or glossaries of technical terms.


Legislation


· Under the criminal procedure Code section 65(1) indirectly allows for a form of submissions to be filed. It states that; “65 (1) An appellant or, where the appellant is the State, a respondent who does not intend to appear in person or by advocate at the hearing of the appeal may lodge with the Registrar a statement in

writing of his arguments in support of or in opposition to the appeal, as the case may be”



This provision is limited in its scope. It only applies to appeals and in relation to a people who do not intend to appear in person at the hearing, furthermore, section 65(3) prevents a person from addressing court during the hearing if he/she has filed such a statement in writing without leave of the court.



· In the Civil procedure Act, section 97 mirrors the above situation in that it applies to appeals only, a party who does not intend to appear in person at the hearing and once filed a party cannot address the court without leave of the court.



It would therefore be unwise for person to filer such a document as they would lose their audience with the court. They would be at the mercy of the court.



· There is no specific provision in either the criminal procedure or civil procedure that deals with filing of skeleton submissions in subordinate court. However, through Gazette Notice No. 8167 of 20081 that came in on September 1, 2008, the Chief Justice Gicheru in exercise of the powers conferred by section 10 of the Judicature Act and pursuant to recommendations by the Expeditious Disposal of Cases Committee of the Judiciary, made the following Practice Directions among others that;

o Rule 1. All courts are encouraged to permit the filing and exchange by the parties of written submissions to supplement or replace oral arguments.



o Rule 16: All courts are required to generally exercise discretion in favour of expeditious disposal of cases pending before them.



· These directions are not court specific. Whether subordinate appellant court or even tribunals. Therefore, all courts in Kenya as it currently stands can ask for skeleton arguments to be filed at whatever juncture to facilitate the court to expeditiously dispose of cases and assist the court to reach a ruling, judgment or decision.



Advantages and Disadvantages

Advantages

Advantages : Assist the judge and counsels understand the substance of each side of the argument

Disadvantages : Muddles presentation and inability to delineate key issues make it redundant


Advantages : Enable as must time to be saved as they reduce or obviate the need for the judges to take longhand notes of the submissions and authorities and documents referred to

Disadvantages : Tend to be too lengthy so that the arguments are lost in the detail; or too scanty so that the points are listed without the supporting elaboration which gives flesh and blood to the bare bones of the propositions.


Advantages : Reduce the tie of hearings therefore more cases are able to be heard


Disadvantages: Not as effective as an oral argument in bringing the attention of the court quickly to the heart of the problem and could never be a satisfactory substitute for an oral argument.

Advantages : Tool of reference for judges when making a ruling or decision, and also eliminates the need to refer from memory or write it all down. If used properly they can be an effective tool to persuade the court to make a ruling in your favour