Legally Speaking: Lawyers Without Borders � A Look Inside the Japanese Legal System

John G. Browning Jun. 21, 2007, 10:32am

I recently had the opportunity to host a visiting judge from Japan, to help him learn more about the American civil justice system. In the process, I not only gained some insight into the Japanese legal system, but I made a new friend as well.

Akira Katase is a district court judge in Osaka, one of Japan's largest cities. For much of the past school year, he has been a visiting scholar at SMU Dedman School of Law, doing research on the U.S. legal system on a grant from the Japanese government. His time here in Dallas has been fruitful, and he's also been able to do some sightseeing and take in games with the Cowboys, the Stars, the Mavericks, and the Rangers (for whom I apologized profusely). From personal observation, I can even tell you that he thoroughly enjoys pizza and good ol' Texas barbecue.

But one thing that had been lacking in his visit here was the opportunity to actually witness some of the proceedings that take place during the course of a lawsuit, such as depositions or mediations (court-ordered settlement conferences).

As Judge Katase explained, he was particularly interested in depositions since "in Japan we don't have [them]," and his only knowledge of them came from watching movies.

That's where I come in. With a busy litigation practice, I have depositions scheduled pretty regularly. I was able to take Judge Katase along on several depositions in some federal court copyright infringement litigation I'm defending.

From preparing with witnesses to the actual questioning to the objections and argument between counsel, Judge Katase got an inside peek at our system at work. While I'm sure it wasn't as entertaining as the movies, he seemed fascinated by it and had many questions about the process.

To understand his fascination, you have to appreciate the fact that, according to Judge Katase, "lawyers play a more important role here than in Japan…lawyers in the U.S. take the initiative in solving problems." Why that role is different is the result of a variety of factors, one of which is sheer numbers.

In a nation of approximately 100 million people, there are roughly 25,000-30,000 attorneys in Japan; by comparison, there are over 70,000 licensed attorneys in Texas alone. One reason for the relatively low number of attorneys in Japan is the difficulty of becoming one; while Japanese legal education takes place at the university level and doesn't involve an additional 3 year curriculum like the U.S., the qualifying examination to become a lawyer is so difficult that only about 2% of the exam-takers pass.

As a result, many of these law graduates who don't take or pass the Japanese equivalent of the bar exam wind up as quasi-lawyers, providing lawyer-like services in such areas as real estate, tax law, civil service or working for corporations. Of those who pass, some go on for further training as prosecutors or judges.

Another reason for the low numbers of attorneys in Japan is cultural. According to Akira Katase, there is a certain element of shame associated with having to consult an attorney. Often, disputes are resolved by the intervention of a trusted family member or business advisor. In addition, certain areas of Japanese law minimize lawyer involvement, such as family law (which has divorce by consent) and real estate.

Since most lawyers tend to concentrate in large urban areas (more than 10,000 lawyers are in Tokyo alone), it can be very difficult to consult with an attorney, particularly in rural areas. As a result of this scarcity, lawyers in rural parts of Japan frequently command higher rates, and don't keep the grueling pace of their urban counterparts.

Japan's legal system itself is a curious mix. With the Westernization of Japan that began with the Meiji Era in 1867, Japan adopted wholesale a European judicial system modeled after German and French law. But after the end of the Second World War, Japan adopted a constitutional system that more closely resembles that of the U.S.

Even so, significant differences remain: for example, Japan does not have a jury system. In what Judge Katase describes as "the biggest change in the Japanese legal system since the post-World War II era," juries will make their first appearance beginning in 2009, and then only in felony cases.

The Japanese court system itself is fairly simple, because it is not a federal system. There is one Supreme Court, eight High Courts (which hear appeals), 50 district and family courts, and 448 summary courts, which are analogous to our small claims/justice of the peace courts.

In a large city like Osaka, many of the courts are specialized courts, hearing only such things as labor and employment matters, intellectual property disputes, bankruptcy, vehicular accidents, or medical malpractice.

The Osaka district court system features 26 civil and 13 criminal "chambers"; each chamber usually consists of three judges: a chief judge, an intermediate judge, and a younger judge. While the two most senior judges each preside over their own individual courts, they also participate in a three judge panel (where they are joined by the youngest judge) which deliberates over only the most serious cases.

Although the youngest judge doesn't preside over his own court, he makes up for it by assuming most of the day-to-day workload on the cases presented to the panel, such as research, reviewing the pleadings, and preparing initial drafts of rulings.

For Akira Katase, it has been a steady rise. Only 28 years old, he has been a judge for 3 years after graduating from prestigious Tokyo University and receiving a coveted 10 year judicial appointment. While his court hears many different types of matters, Judge Katase has already helped preside over one of Japan's highest profile cases.

When former Japanese Prime Minister Koizumi made the controversial decision to publicly pray at Yasukuni Shrine (Japan's most sacred shrine honoring its WWII dead) he drew not only media ire and anger from other Asian nations but also litigation from Taiwanese survivors of Japan's occupation, angered by what they claimed was state glorification of war crimes. Judge Katase and his fellow panel judges held that Koizumi was not acting in an official capacity but as a private citizen, a ruling that was upheld by the Japanese Supreme Court.

Akira Katase's quest to learn more about our system indirectly provided me with the chance to learn more about Japan and its legal system. While I doubt that I could ever leave the U.S. and become "gaikokuho-jimubengoshi" (literally, a "foreign lawyer" who practices in Japan), I do plan to visit Osaka someday and see Judge Katase at work.

Just as he learned from us, I suspect I could learn a lot from him.

More News