Disputed “unorganized hearing”

In general, few of you may have gone through a trial.

With respect to the procedures of criminal courts, public prosecutors prosecute suspects arrested by the police to bring in a verdict of guilty or not guilty.

Meanwhile, if, for example, a dispute between private citizens cannot be resolved through discussion between both parties, a civil trial starts when either party files a lawsuit in court.

For instance, if a person does not return the money you have lent them, you as the lender have the right to demand return of the loaned money on the basis of the loan agreement.

Nonetheless, self-help to exercise the right, including a resort to violence, is prohibited. In a way, the national institution acts as an agent for individuals’ rights. In such cases, you have to prove to the national institution (i.e., civil courts) that the right actually belongs to you in order to receive a ruling in your favor.

Therefore, you file a lawsuit in court as the plaintiff to claim and prove that you have the right.

At the same time, a copy of the complaint is sent to the accused defendant by the court. This is a special system called Service, in which a postal clerk delivers the complaint directly to the receiving party, instead of putting it in a mailbox. It is called Personal Service (Article 101 of the Code of Civil Procedure).

The defendant examines the complaint, and submits a written counterargument called a Written Answer to the court in response to any unconvincing matters. After that, the plaintiff and defendant submit Briefs detailing allegations of both parties, together with evidence, to the court in advance, to discuss the allegations and counterarguments.

Then a judge studies the allegations of both parties, examines the evidence and other matters, and determines which allegation has legal grounds to pass judgement.

Still, it may be difficult for a judge to understand the problematic and debatable points of the case.

Thus in the past, at an early stage when it was unclear what the problem or issue was, both parties were summoned and witnesses were interrogated to understand the big picture of the case. When the problems and issues gradually became clear in this way, the parties and witnesses were once again summoned and interrogated.

This is “unorganized hearing” called a “Samidaresiki” hearing or “Hyouryugata” hearing in Japanese, which caused lengthy trials.

In order to improve such court procedures, the Code of Civil Procedure was revised in 1996. The essence of the revision is to hold trials (especially, examination of witnesses and parties) after the parties, attorneys and judges fully understand what the problems and issues are.

This enables speedy trials without repeatedly summoning witnesses or having minor discussions.

However, giving the example where a patient dies because of an unsuccessful medical operation and a malpractice lawsuit is filed, although it is an obvious fact that the patient has died, it is in fact not easy to comprehend where the problem lies.

Was it the right operation to begin with? Did the surgeon make any mistakes? Was it a difficult operation with a low success rate in the first place? It is impossible to comprehend what the problem is without considering each of various factors based on expertise. Expert testimony by third-party doctors provides professional opinions.

Legal professionals are, I understand, essentially required to carry out such work properly. In this sense, it is critical to appropriately and promptly understand the true problems and issues, which have caused the dispute, in order not only to speed up but also to realize trials based on true facts (i.e., procedural justice and substantive justice).

Various benefits of IT introduction in courts

IT introduction has been promoted as a means to realize procedural and substantive justice. This has been discussed for some time, and the pandemic acted as a trigger to make substantial progress.

As a matter of fact, in 2020, trials (where people would come together) were principally suspended with some exceptions to prevent the spread of COVID-19.

In the meantime, however, the number of cases increased. Consequently, so-called e-court service was carried out virtually. Judges and attorneys discussed things in online meetings via Microsoft Teams, taking advantage of an existing system (Written Preparatory Proceedings (Article 175 et seq. of the Code of Civil Procedure)) under the active Code of Civil Procedure that regulates court procedures. In the end, the service was received unexpectedly well by judges and attorneys alike, and they appreciated invigorated oral discussions with points in dispute organized effectively.

To give an example, judges and attorneys in civil courts meet in small rooms such as seminar rooms, and they conduct Preparatory Proceedings to crystalize issues in dispute (Article 168 et seq. of the Code of Civil Procedure).

Even in such cases, however, oral discussions are not sufficiently conducted, and quite a few attorneys make their counterarguments against the allegation of the other party in the succeeding Briefs. This prolongs legal procedures.

On the other hand, when such meetings are conducted online, where your face shows in closeup on the screen, there is an atmosphere in which you can talk freely. It is different from the formal, official process in courtrooms, and attorneys presumably make good preparations because they think they will give the judge a bad impression if they cannot give answers on the spot or they fall silent.

When attorneys make good preparations for discussion in this way, it invigorates discussion and helps a rapid understanding of points in dispute. However, these preparations are a challenging task.

As mentioned earlier, there used to be unorganized hearing, and it was pointed out that poor preparation of attorneys contributed to this. It is obviously easier to respond and argue as the other party points something out rather than to closely examine all details of a case in advance.

However, this would not enliven oral discussions, and it would prolong the task of crystalizing issues.

In other words, if we can expect such change in the actions of attorneys in e-court service, it will be of great advantage.

Besides, there is no need in online service to adjust schedules due to waiting for an available courtroom or a room for Preparatory Proceedings.

Furthermore, it is also a great advantage that the parties involved do not need to come a long distance to court for each hearing. For example, it was common for an attorney in an office in Tokyo to go to the Osaka District Court as a litigation representative. The Amended Code of Civil Procedure includes the revisions to flexibly conduct Preparatory Proceedings and other procedures based on web meetings with such benefits (Paragraph 3 of Article 170, etc. of the Amended Code of Civil Procedure).

In addition, if a system for realizing IT introduction is developed in the future under the Amended Code of Civil Procedure, so-called e-submission, in which documents such as complaints and evidence are submitted online (Article 132-10 et seq., etc. of the Amended Code of Civil Procedure), will be feasible, and Service based on an online system (Article 109 et sec. of said Code) will be also feasible. Until now, all documents were submitted in paper to courts, Personal Service was provided, and documents were sent by fax. If e-submission and Service via an online system become available, it will save time and reduce burden.

Good use of IT will change trials

Can IT introduction in courts be all good? Actually, there are also problems.

First of all, Articles 32 and 82 of the Constitution of Japan have set forth the right of people to a trial and the principle of public trial. This principle is important in order to prevent injustice as a result of a closed trial and the abuse of authority, taking into account history.

Therefore, in the case of e-court service utilizing a web meeting and other means (Article 87-2 of the Amended Code of Civil Procedure), for example, a system can be considered in which a judge actually sits in a courtroom, an attorney has online access to court from the office, and movies on the monitor set in the courtroom are released for public observation. How to realize this matter is likely to be a future challenge.

For e-submission, common e-mail software should not be used for security reasons. It is necessary to ensure security and to create an easy-to-use original system of courts.

In order to realize e-submission, it is also necessary to establish a system to deliver complaints and other documents to the other party without fail, or a system to confirm the receipt.

This is because there is a legal system in which a court decision is made in favor of the allegation of the plaintiff if the defendant is absent from a first oral proceeding. It is called default judgment in practice.

Default judgment should never happen when you have no opportunity for your counterargument only because you are not aware that a complaint has been delivered to you via an online system connected to the Internet. This is why it is essential to create a system that does not allow this to happen.

Besides, not everyone is able to master information technology on the same level. Some support is also required so as to avoid causing disadvantage depending on the devices or skills the person has. Especially in Japan, the conflicting parties can proceed with court procedures by themselves without hiring an attorney (this is called pro se legal representation), and this requires further support.

Considering these points, IT introduction is most likely to center around the communication between courts and attorneys, who represent the parties concerned, at the beginning of IT system.

As stated previously, speeding up is not the only purpose for revising the court system. Although IT introduction is an effective means in light of speeding up the process, in case of domestic relations mediation procedures for divorce, for instance, conversation through the screen is unlikely to result in a calm discussion because it is difficult to sense the emotion of the other party or the atmosphere, while it may be possible to establish a dialogue sensing them during an in-person meeting.

The basis of civil courts lies in substantive and procedural justice (i.e., speedy judgement based on truth by impartial judges), and judicial economy (inexpensive). Without adequate opportunities of allegation, proof and counterargument being given to both parties, a trial would not be appropriate or fair even if it was speedy. This would not make the parties satisfied, and it would undermine confidence in courts.

From this perspective, I believe that, when attorneys perform the functions that they are supposed to provide, which is to closely examine cases, oral discussions are activated, and that leads to sufficient allegations and counterarguments, and further to the speed-up of trials.

In other words, IT introduction will not improve everything in courts, and it is expected to trigger the improvement of courts by making them use it well as a tool.

Lastly, most of you are probably not familiar with trials and one of them would be rather a special event. Nevertheless, what is brought to court can also be a problem in everyday life.

To give an example, we keep a promise because it is considered to be normal, not because it is required by law.

However, we are sometimes not aware that we have made a promise to someone in our daily lives. Despite that, the other person may take it as a promise. This may cause friction, which will lead to a trial.

In this sense, empathy for others is crucial. Noticing how your behavior is taken by the other person can be a skill to avoid misunderstanding or friction in relationships with others. This will ensure that you would not break a promise that you do not recall making.

I believe that developing empathy really is a key to staying away from court.

* The information contained herein is current as of May 2022.
* The contents of articles on Meiji.net are based on the personal ideas and opinions of the author and do not indicate the official opinion of Meiji University.
* I work to achieve SDGs related to the educational and research themes that I am currently engaged in.

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