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TLI4801 - Litigation Skills for SouthAfrican Lawyer
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TLI4801 - Litigation Skills for SouthAfrican Lawyer
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TLI4801 - LitigationSkills for
SouthAfrican
Lawyers
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Foreword to revised edition 2003
Although I know the difference between a rave review and a foreword, I simply cannot maintain the requisite
degree of dignified restraint here. This book could not have appeared at a better time; nor could its contents have
been more appropriate. This I discovered to my delight when I recently used it in preparing a lecture for candidates
for Bar pupillage. I was so impressed with the particular section I was studying that I started browsing further and
further afield, eventually reading the book from cover to cover.
It is trite that in our system of justice the quality of a court's jurisprudence is directly dependent upon the quality
of the practitioners who appear before it a Bench is as good as its Bar. This the South African Bar (in common with
its kindred bodies in England and other similar jurisdictions) has long since known. An increasingly structured
system of pupillage has been developed in this country over the past 30 years, concentrating more and more on
the ethics and skills of advocacy rather than on theoretical knowledge of the law. Latterly courses have been
offered to young advocates already in practice too. The underlying objective is to ensure that attorneys, litigants
and the courts can have confidence in the professional skills of members of the Bar.
That objective has been given special impetus over the last decade. The negotiated revolution of 1994 brought
about many changes in South Africa. The most important was the transfer of state power from parliament to the
Constitution. Adoption of the doctrine of separation of powers with a fully justiciable bill of rights clothed the courts
with greatly enhanced power and responsibility. At the same time the courts and their officebearers had to mutate
from an almost exclusively white male preserve to a true reflection of the society they serve. This transformation
has increased the need for tailormade training for all who play a part in the functioning of the courts.
Over many years I have had the privilege of sharing in professional training and can, I think, claim sufficient
expertise to express an admissible opinion on the merits or otherwise of forensic training material. Marnewick on
litigation skills (as I am sure it will soon come to be called familiarly) is a winner. Although the primary target group is
young advocates in private practice, everybody involved in litigation who studies what the author has so helpfully
systematised will enrich and polish their courtroom knowledge and skills. Here I have in mind not only seasoned
advocates, but prosecutors, attorneys and even judicial officers of all ranks.
I have been made to realise, with considerable embarrassment, just how illequipped I was for the advocate's
profession. I am even more embarrassed at being shown how inadequate my wellmeaning but disorganised efforts
at training have been. My copy of this book will become dogeared.
Johann Kriegler
Johannesburg
August 2003
Preface to third edition
The training of advocates has made considerable progress since the publication of the second edition of this book.
Consider the following facts:
o In the five or so years up to 2003 the failure rate at the Bar exams was in the region of 40% each year;
o The people who wrote those examinations were all LLB graduates;
o The vast majority of those who failed came from disadvantaged backgrounds and the former "homeland"
universities;
o This occurred against the background of an underrepresentation of black advocates particularly African
advocates at the Bar.
The continuing failure of the Bar's training methods to produce an acceptable pass rate stirred many members of
the profession into action. The first edition of this book was my effort to bring our training methods into line with
international practice and was published in 2002. It advocated and used, as this edition still does, the "learningby
doing" method I had learned while teaching in New Zealand. In 2003 the General Council of the Bar (GCB) resolved
to extend pupillage from six months to one year and to put greater effort and resources into the training of pupil
advocates. In 2004 it implemented the Workbook Programme I had written taking the "learningbydoing method
a step further and it stepped up its advocacy training programme at the same time. The GCB also organised
annual training for its advocacy trainers and academic tutors in order to facilitate their teaching. In the space of a
year or two everything came together and the failure rate at the Bar exams fell from 40% in 2003 to 20% in 2004,
and then it reduced incrementally each year until it stood at below 2% in 2011.
There are many who have contributed to this success; advocates who have acted as mentors to pupils, tutors
and advocacy trainers who have conducted the training, pupillage coordinators who have overseen the training at
their bars, administrative staff and bar councils who have made it all possible. Many retired judges have also
participated in the Bar's programmes by providing training.
I would like to acknowledge the good work done by all these men and women by dedicating this edition to them.
And I would like to thank my friend and colleague, Roland Suhr, of the Durban Bar, for his invaluable suggestions
for improvements to this work.
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Chris Marnewick SC
Auckland
September 2012
Preface to second edition
The first edition of this book was a rather surprising success, so much so that the National Bar Examination Board
banned it from its Legal Writing examination on the ground that it "made the examination too easy". Then the
Librarian of the Law Society's library in Durban told me that all three copies she had of the book were quickly stolen
from the library. I cannot determine which is the greater compliment; that the book was banned, or that it was
stolen.
South Africa is an ordered society based on the constitutional guarantee of equality, fairness and justice. An
effective litigation process is one of the cornerstones of such a society. It is therefore essential that in order for the
aims of the Constitution to be achieved there should be an effective litigation process, which in turn demands that
the lawyers appearing before the courts should be competent and ethical.
The aim of this book is to help newly qualified lawyers to reach the levels of competency and professionalism
required by the Constitution, the courts and the public.
We know, after many investigations, seminars and debates, that university training is insufficient to provide our
young lawyers with the skills they need to engage in practice in the courts. Justice Johann Kriegler's kind foreword
and my own experience in the Potgietersrus (now Mokopane) Magistrates' Court and other courts confirm that this
lack of practical skills is not a new phenomenon, and that it is not limited to those students who arrive at the Bar or
in an attorney's firm from a background of poor schooling and indifferent universities.
My experience elsewhere led me to the same conclusion. The problem appears to be universal. The solution is
obvious greater emphasis on practical training.
This edition of the book will therefore continue in its own tradition of not referring to authorities, not relying on
footnotes, and not engaging in academic discussions. The book is intended to be a practical guide for teacher and
student alike, to be used in the teaching and learning of the skills and techniques which are essential for a
practitioner embarking on a career in the litigation field.
I have learnt a good deal about the litigation process while trying to teach others. Teaching is a very effective
way of learning, and I have learnt a lot from those I have taught. I would like to invite others to join me in that
pursuit. It is more rewarding than you could ever imagine. My challenge to my colleagues at the Bar and in the
Attorney's profession is this: Don't go to your grave with your knowledge and skills locked up within you; share
them with our newly qualified members. Knowledge or skill which is not shared goes to waste.
Chris Marnewick SC
Durban
February 2007
Preface to first edition
I want to put as many new ideas into the law as I can, to show how particular solutions involve general theory . . .
Oliver Wendell Holmes, Jr US Supreme Court Justice, 19021932
I ran my first case in the Magistrates' Court at Potgietersrus, where I was working during the university holidays.
The prosecutor handed me a docket and a charge sheet and told me to take the case in the next court; he was too
busy with another trial. It was a simple stock theft case. I then found, to my horror, that even though I had been
watching other people conducting trials for some time, I really had no idea how to do it myself. I knew what I had to
do; I just didn't know how to do it. There was a large gap between my academic knowledge, which was fine, and my
practical skills, which were absent. It was very embarrassing. I survived the ordeal only because the magistrate and
the defence attorney helped me when I didn't know what to do or say.
It doesn't have to be like that.
The aim of this book is to help young practitioners (attorneys, advocates and prosecutors) to acquire and
develop the skills and techniques of the litigation process to represent their clients with competence and
confidence. The emphasis is on skills, not knowledge. Every chapter of the book therefore concentrates on
technique. To help you keep track of all the skills and techniques involved, there is a list of precedents, examples
and strategies, including what to say to the court in different situations, immediately after the table of contents.
There is a popular myth among the legal fraternity that skills cannot be learned or taught. The suggestion seems
to be that you are either born with advocacy skills or without them; and if you were born without them, you might
as well give up any hope you harboured of ever becoming a skilled litigator. I don't agree. Even a moderately
talented person can acquire good advocacy skills. If they can be acquired, they can be taught. I would not have
written this book if I thought otherwise. The secret lies in learning general techniques and procedures that can be
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adapted to suit almost any circumstance you - The study-notes
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during the litigation process.
The book is not about the theoretical aspects of advocacy. It is about practical skills and tips for everyday use in
practice. Its aim is to teach the "how" rather than the "what". Conventional legal education teaches the law
student what the law is, the "this" and the "that", the substantive and procedural rules of the law. Universities
teach textbook law. Textbook knowledge tends to be superficial. It is acquired by studying. It is passive, existing in
the mind. It is also random in that it depends on some arbitrary syllabus, and general, giving the student no clear
reason why a particular piece of knowledge is necessary. On the other hand, a skill, or "knowhow", is far more
deepseated knowledge, and, once acquired, tends to remain. It is acquired by "doing", by practising the technique
of the skill over and over. It is also active knowledge, demonstrated by action. With skills the emphasis is always on
"doing". If you can't do it, you don't have the skill; if you can do it, you have the skill. And the only way to
demonstrate that you have mastered a particular skill is to do it, like riding a bicycle!
When I started this book, it was intended for use as a litigation skills guide for the practical training of aspirant
advocates and attorneys at the law schools of the universities, the Practical Training Schools of the Association of
Law Societies and the Advocacy Programmes of the Bar. However, as the book developed during the research and
writing processes, it dawned upon me that junior practitioners also need a book that they can carry to court with
them, to serve as a first or basic guide for all the steps and procedures which constitute the litigation process. I
know of no other book that covers the whole process from beginning to end. I couldn't even find a book to help me
with the chapter on appellate advocacy, and as for fact analysis, the subject seems to have been largely ignored in
South African legal education programmes.
Footnotes and references to cases, statutes, rules and textbooks are avoided as far as possible. Valuable time
should not be spent looking up the Rules of Court, or having to find principles, statutes and cases in the Law
Reports. Nevertheless, because the book is also intended to cover the syllabus for the Bar Examinations in Legal
Writing, parts of the syllabus for Civil Procedure and parts of the Attorney's Admission Examinations, reference is
made to the High Court Rules from time to time. The rules referred to in the text should be studied as part of the
process of learning how to apply them. The reader will need to have access to the Uniform Rules of the High Court
(referred to in the text as "the rules"), a commentary on the rules, Amler's Precedents of Pleadings (LexisNexis
latest edition)) and a good textbook on the law of evidence.
What skills are involved in the litigation process? The American Bar Association has identified ten fundamental
skills and four fundamental values which every lawyer should have to be able to assume the full responsibilities of a
member of the legal profession (Legal Education and Professional Development An Educational Continuum Student
Edition ABA (1992)).
The ten fundamental skills are:
1 problem solving;
2 legal analysis and reasoning;
3 legal research;
4 fact investigation;
5 communication;
6 counselling;
7 negotiation;
8 litigation and alternative dispute resolution procedures;
9 organisation and management of legal work;
10 recognising and resolving ethical dilemmas.
The four fundamental values are:
1 providing competent representation;
2 striving to promote justice, fairness and morality;
3 striving to improve the profession;
4 engaging in professional selfdevelopment.
I hope this book will help you to develop these fundamental skills and values so that you may become a competent
and confident litigator. It is easier than you might think.
Chris Marnewick SC
Auckland
July 2002
Acknowledgements
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