PREPARING FOR COURT

A fundamental rule for a trial advocate is PREPARE, PREPARE, PREPARE and PREPARE. There is never too much preparation. Preparation should start at your first meeting with your client and should go on until the case is concluded. In order to be adequately prepared, trial advocates are advised to know the facts of their client's case, to know the law applicable to the case, to be organized, to thoroughly read their file and so forth. Needless to say, there are a lot of materials written on the topic of trial advocacy. I particularly wish to acknowledge a paper by Justices Carole Curtis and Roselyn Zisman titled, "Top Ten Advocacy Tips: How to impress the judge and hopefully win your case" presented at the National Family Law Program, Federation of Law Societies of Canada, July 2014.

In these short notes, I have outlined what I have learned during my few years in practice as an advocate of the High of Kenya. The notes are not exhaustive and may only be considered with necessary modification bearing in mind the peculiar circumstances of one's case. Feel free to add on to them.

DAYS BEFORE COURT ATTENDANCE.

Bring up your file at least 2 weeks to the court date.

Update (or remind) your client of the court date.

If for the plaintiff/applicant/appellant and date was taken without the involvement of the other parties, confirm that you have notified all the concerned parties and ensure you have filed an affidavit of service.

Check whether there are any court orders and/or directions that you need to comply with and see to it that there is compliance.

Prepare a detailed instructions note detailing for instance, the parties, the case number, advocates on record for the parties, the court in which the matter is listed, nature of the court attendance, brief relevant history of the court proceedings, what orders you are seeking et cetera.

Make an effort of knowing your court. What time does the court start? What is the order of proceeding (certain courts start with hearings, others follow the cause list, others seniority of counsel before them)? Where does the court sit? What specifics does the court look out for

If possible, peruse the court file in advance to satisfy yourself that all your filings are in order and that the court proceedings, orders and directions match your record.

PREPARING FOR A CASE MANAGEMENT CONFERENCE.

Check that you have filed all the compliance documents and whether you have completed and filed a case management checklist. For proceedings before the Court of Appeal, satisfy yourself that the Record of Appeal is proper.

Determine what orders you will be seeking from the court. Eg; Matter to be certified ready for hearing, court to issue summons to certain witnesses, leave to file supplementary documents, to proceed by way of video link, to proceed by way of case stated (See Order 35 of the CPR) et cetera.

Anticipate the orders your counterparts may seek and prepare to respond appropriately.

PREPARING FOR A MENTION.

Take the above steps with necessary modification.

Mentions will ordinarily be for purposes of confirming compliance with certain court orders and or directions. For instance to confirm filing of submissions. Has there been compliance?

PREPARING FOR HEARING OF AN APPLICATION.

Take the above steps with necessary modifications.

Is the application opposed? Have you been served with a replying Affidavit or grounds of opposition? Do you need to file a further affidavit? Do you require leave to do so?

If opposing, have you filed and served a replying affidavit or grounds of opposition?

File a list and bundle of authorities. Note to paginate the bundle and highlight/underline/flag the relevant parts.

Consider mode of proceeding with the application including cross examination of deponent, oral submissions or written submissions. If proceeding orally, consider filing skeleton submissions nonetheless.

Any temporary orders to be sought pending the hearing of the application? Any orders to be extended?

PREPARING FOR A HEARING.

Consider the above steps with necessary modification.

Comprehensively study your file at least 2 weeks to the hearing and make a summary of the relevant facts.

Come up with a strategy for the hearing.

Prepare hearing notes including guiding questions for examination in chief and cross examination.

Identify the salient strengths and weaknesses of your client's case (if any).

Schedule a pretrial conference with the witness(es).

Orient the witness(es) on general court procedures, general court etiquette and decorum and what is expected of them during the hearing. It is absolutely important that you advise your client to be punctual in attending court, to face the presiding judicial officer while testifying, to be audible, to be respectful, not to panic, to let you guide them during examination in chief, to truthfully answer the questions asked, to politely seek a clarification where the question asked is not clear and to know that you will have a chance during re-examination to clarify any issues that may have arisen during cross examination.

The paper by Justices Carole Curtis and Roselyn Zisman provides a sample tip sheet for witnesses giving evidence at trial. It would be helpful to print out the document and share it with your witness.

Point out the strengths and weaknesses in your client's case to the witness(es) and address them. This helps your witness not to be caught by surprise on the weaknesses and to tactfully tackle them by focusing on the strengths.

Note any special requests by the witness(es) (the witness may have a medical condition that needs to be communicated to the court or the witness may need a translator.)

Prepare brief opening arguments and file them. You may also have your closing arguments ready just in case.

If compelled to seek an adjournment for any reason whatsoever, it is courteous that you notify your counterparts well in advance.

PREPARING FOR DELIVERY OF A RULING OR JUDGMENT.

As above with necessary modification.

Consider what oral applications to make, orders or directions to seek as a consequence of the Ruling or judgment. For instance: a temporary stay of execution pending appeal (under what provision of the law? On what grounds? For what purpose?), a stay of proceedings? a temporary injunction pending Appeal? (Carry the decision of Madhupaper International Ltd vs Kerr [1985] to court) Do you have an automatic leave of appeal or do you need to seek leave to appeal (See Order 43 of the CPR)?

Apply for certified copies of the typed proceedings, order, judgment or ruling.

PREPARING FOR A NOTICE TO SHOW CAUSE (NTSC).

The NTSC may be to show cause why a case should not be dismissed for want of prosecution or to show cause why execution should not issue against a judgment creditor who has failed to satisfy a decree of the court (See order 22 rule 18 of the CPR).

Consider the above steps with necessary modification.

For NTSC why suit should not be dismissed, consider the reasons for or against the dismissal depending on which side you are on. If necessary file an affidavit together with supporting judicial authorities. Skeleton submissions may also be considered.

For NTSC against execution, ensure the NTSC has been served and an affidavit of service is filed.

Prepare and file a statement of account showing any expenses incurred after issuance of the decree and any interest accrued. This is to be done every time the matter comes up in court.

For NTSC where the mode of execution is arrest and committal to civil jail of the judgment creditor, where the court grants a further date, hand over the warrants to the court for endorsement of the next court date and court signature.

ON THE DATE OF THE COURT ATTENDANCE.

Carry the correct file, court diary, a writing pad, a pen, relevant statutes for instance the Constitution, Civil Procedure Act and the Rules, Evidence Act, Penal Code Criminal Procedure Code, Appellate Jurisdiction Act and the Rules, Employment Act and the rules et cetera.

Peruse your diary beforehand and note the convenient dates for you in case the court gives you another date for whichever purpose. Always be mindful to ask the court to allocate you a date that is convenient to your diary.

If possible, obtain a copy of the day's cause list. You may print the online cause list from the eKLR or make a copy from the court notice board.

Prepare psychologically for the court. Do you need a bottle of water? Do you need to visit the gents or the ladies? Is your phone on silent?

Head to court in good time. Avoid last minute rush.

If expecting your client or a witness, get in touch with them and confirm their attendance.

AFTER COURT ATTENDANCE:

Diarize the date given.

Update the client of the court proceedings, orders given and next court date. Let your client know what is expected of him/her before the next court date.

Diarize the next bring up date for the file.