Streamlining Your Japanese Lawsuit: How to Effectively Utilize "Preparatory Proceedings for Oral Argument" (Benron Junbi Tetsuzuki)?

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

Navigating a civil lawsuit in Japan involves several distinct stages, each with its own strategic importance. Among these, the "Preparatory Proceedings for Oral Argument," or Benron Junbi Tetsuzuki (弁論準備手続), stands out as a critical phase for shaping the trajectory of a case. Unlike the often more public and adversarial initial courtroom encounters familiar in some jurisdictions, these proceedings are typically held outside the open courtroom and are designed to meticulously organize the disputed issues and evidence before the main oral arguments and witness examinations commence.

For businesses involved in Japanese litigation, understanding the purpose, mechanics, and strategic utilization of Benron Junbi Tetsuzuki is key to ensuring their case is presented effectively, efficiently, and with the best possible chance of a favorable outcome, whether through settlement or judgment. This article delves into this pivotal stage of Japanese civil procedure.

The Japanese Code of Civil Procedure (CCP - 民事訴訟法, Minji Soshō Hō) provides for several mechanisms to organize the points of contention and evidence in a lawsuit. While options include Preparatory Oral Arguments (junbi-teki kōtō benron - 準備的口頭弁論) held in open court and Preparatory Proceedings by Written Submissions (shomen ni yoru junbi tetsuzuki - 書面による準備手続), the most predominantly utilized and arguably most dynamic method is the Benron Junbi Tetsuzuki.

Legal Basis and Core Purpose:
Governed by Articles 168 to 174 of the CCP, Benron Junbi Tetsuzuki is initiated by the court when it deems necessary for the purpose of "organizing the issues and evidence" in the lawsuit, after hearing the opinions of the parties (the opinion of just one party can be sufficient for the court to commence these proceedings).

The fundamental goal is to:

  1. Clarify Disputed Facts and Legal Issues: Systematically identify which factual allegations and legal interpretations are truly in dispute and which are agreed upon or no longer contested.
  2. Organize Evidence: Review the documentary evidence (shoshō - 書証) submitted by both parties, discuss its relevance and admissibility, and plan for the examination of other forms of evidence, particularly witnesses.
  3. Enable Focused Subsequent Hearings: Ensure that later formal oral argument sessions and witness examinations (often referred to as "concentrated examination of evidence" - shūchū shōko shirabe - 集中証拠調べ) are focused only on the genuinely disputed and critical points, thereby making the trial process more efficient and effective.
  4. Facilitate Settlement: While not its sole purpose, this phase often provides a conducive environment for the court to explore and encourage settlement (wakai - 和解) possibilities once the issues are clearer.

Key Characteristics of Benron Junbi Tetsuzuki:

  • Not Open to the Public (CCP Art. 169(2)): Unlike formal oral arguments, these proceedings are typically held in a conference room (junbi tetsuzuki shitsu - 準備手続室) or a judge's chambers, often around a round table. This less formal and private setting is intended to encourage more candid and productive discussions between the parties' counsel and the judge(s).
  • Attendance by Parties (CCP Art. 169(1)): Both parties (or their legal counsel) have the right to be present and participate.
  • Application of Oral Argument Rules (CCP Art. 170(5)): Many procedural rules applicable to formal oral arguments apply mutatis mutandis.
  • Wide Range of Procedural Actions (CCP Art. 170): During these proceedings, the court can:
    • Order the submission and clarification of preparatory briefs (junbi shomen - 準備書面).
    • Conduct the examination of documentary evidence and quasi-documents (e.g., photographs, audio/video recordings - jun-bunsho - 準文書, CCP Art. 231).
    • Rule on applications for other types of evidence, such as document production orders (bunsho teishutsu meirei - 文書提出命令), orders for third parties to send documents (bunsho sōfu shokutaku - 文書送付嘱託), orders for investigation by public or private entities (chōsa shokutaku - 調査嘱託), site inspections (kenshō - 検証), and expert opinions (kantei - 鑑定).
    • Make other procedural rulings (e.g., on amendment of claims, intervention by third parties).

This phase is thus far more than a simple scheduling conference; it is where much of the substantive legal and factual debate occurs, and where the judge often forms significant preliminary views (shoshinshō - 初心証) on the case based on the written submissions and documentary evidence.

The Mechanics of Benron Junbi Tetsuzuki: How It Unfolds in Practice

1. Commencement:
The court typically decides to initiate Benron Junbi Tetsuzuki after the initial exchange of the complaint (sojō) and the answer (tōbensho), usually at or after the first formal oral hearing date. The timing can vary depending on the complexity of the case, the court's caseload, and the judge's preferred approach to case management. In some straightforward cases, it might not be used at all, while in complex commercial litigation, it is almost invariably a central part of the process.

2. The Iterative Process of Argument and Evidence Refinement:
Benron Junbi Tetsuzuki usually involves multiple sessions held over a period of several weeks or months. The typical flow involves:

  • Exchange of Preparatory Briefs (Junbi Shomen): Between sessions, parties submit increasingly detailed preparatory briefs. These briefs respond to arguments made by the opposing side, further develop their own factual and legal positions, and refer to supporting evidence. Understanding and correctly pleading the "essential facts" (yōken jijitsu - 要件事実) required to establish each element of a claim or defense is crucial in these submissions.
  • Discussion and Clarification in Sessions: During each session, the judge will lead a discussion based on the submitted briefs and evidence. The judge will:
    • Seek clarification (shakumei - 釈明, under CCP Art. 149(1)) from counsel on ambiguous points in their arguments or evidence.
    • Help identify areas of agreement and disagreement, thereby narrowing the disputed issues.
    • Discuss the relevance and sufficiency of the evidence presented and indicate whether further evidence might be necessary on particular points.
    • Outline the agenda for the next session and set deadlines for further submissions.
  • Examination of Documentary Evidence: A core activity is the court's examination of the documentary evidence filed by the parties. This is where Evidence Explanatory Notes (shōko setsumeisho - 証拠説明書), required under Rule 137(1) of the Rules of Civil Procedure (RCP), become vital. These notes explain the author, date, and relevance (probative value - risshō shushi - 立証趣旨) of each document, helping the judge quickly understand its significance.

3. Communication Methods:

  • In-Person Meetings: The default is for these sessions to be held in person in a designated conference room at the courthouse.
  • Telephone Conference System (Denwa Kaigi Shisutemu - 電話会議システム): The CCP (Art. 170(3)) allows for the use of telephone or video conferencing if, for example, a party or their counsel is located at a distance and the court deems it appropriate after hearing the parties' views. However, a significant limitation for Benron Junbi Tetsuzuki is that even when using a telephone conference, at least one party (or their counsel) must typically be physically present in the room with the judge (CCP Art. 170(3) proviso). This can create an imbalance if one side is physically present and able to engage more directly with the judge, while the other participates remotely. Therefore, despite potential travel costs, in-person attendance by counsel is often strategically preferable if feasible.

4. The Judge's Active Role:
Unlike judges in some purely adversarial systems who might take a more passive role during pre-trial phases, Japanese judges are often very active during Benron Junbi Tetsuzuki. They are not merely umpires but act as managers of the proceedings, guiding the parties towards a clear articulation of their disputes and an efficient presentation of their evidence. They may:

  • Actively question counsel on factual assertions and legal theories.
  • Suggest potential legal interpretations or points that need to be addressed.
  • Express preliminary, non-binding views on certain issues to help parties assess their positions.
  • Strongly encourage the parties to explore settlement possibilities.

5. Settlement Discussions (Wakai no Un'yō - 和解の運用):
Benron Junbi Tetsuzuki provides a natural and frequent forum for exploring settlement. Once the issues are somewhat clarified and the parties have a better sense of the strengths and weaknesses of their respective cases (and often, the judge’s preliminary leanings), the judge will often actively encourage settlement discussions.

  • These discussions can occur through various methods, including "alternate meetings" (kōgo mensetsu - 交互面接), where the judge meets with each side separately, or "joint meetings" (sōhō taiseki - 双方対席) with both sides present.
  • Attorneys must be prepared to discuss settlement with their clients throughout this phase and to engage constructively if the court initiates such discussions. However, a crucial point of caution arises if clients themselves attend these settlement discussions: statements made by clients in the less formal setting of settlement talks during preparatory proceedings, especially if not based on evidence already on record, could inadvertently influence the judge's overall view of the case if settlement ultimately fails and the matter proceeds to judgment.

For legal counsel, Benron Junbi Tetsuzuki is not a passive phase but a critical battleground where much of the case can be won or lost before formal witness examinations even begin.

  1. Thorough and Timely Preparation is Paramount:
    • Mastery of the Case: Counsel must have an exhaustive understanding of their client's facts, the applicable law, and all available evidence.
    • Well-Crafted Preparatory Briefs: Junbi shomen are the primary tools for argumentation. They must be clear, logical, meticulously organized (distinguishing principal facts, indirect facts, etc., as per RCP Art. 79(2)), and rigorously supported by precise references to documentary evidence. For lengthy briefs, a table of contents (mokuji) is highly recommended.
    • Meeting Deadlines: Adherence to court-set deadlines for submitting briefs and evidence is crucial for maintaining credibility and ensuring the smooth progression of the proceedings.
  2. Active and Engaging Participation in Sessions:
    • These proceedings are designed for dynamic, three-way interaction between the judge and counsel for both sides. Counsel should actively:
      • Explain and advocate for their client's position effectively.
      • Respond thoughtfully to questions from the judge and arguments from opposing counsel.
      • Seek clarification (shakumei) from the court or the opposing side on ambiguous points.
      • Use the discussions to gauge the judge's evolving understanding of the case and any preliminary leanings.
    • Client Consultation: It is vital to consult closely with the client before and after each session. Attorneys should be prepared to answer most of the judge's factual queries without constantly needing to defer back to the client. Failing to have basic facts at hand can reflect poorly.
  3. Strategic Presentation and Organization of Documentary Evidence:
    • Key documentary evidence should be submitted early in this phase.
    • Evidence Explanatory Notes (Shōko Setsumeisho): As mandated by RCP Art. 137(1), these notes, explaining the source, date, and probative purpose of each document, are not a mere formality. They are heavily relied upon by judges to understand the significance of the evidence. A well-drafted shōko setsumeisho can significantly enhance the impact of documentary proof.
    • Highlighting key portions of documents (e.g., with markers on copies submitted to the court) can also aid comprehension.
  4. Maintaining Client Trust and Communication:
    Since Benron Junbi Tetsuzuki sessions are not public and clients may not always attend, it is absolutely critical for attorneys to maintain transparent and frequent communication with their clients (a duty also outlined in Article 36 of the Basic Rules of Bengoshi Duties). This includes:
    • Promptly reporting on the discussions and outcomes of each session, perhaps using a formal progress report (keika hōkokusho - 経過報告書).
    • Explaining the strategic rationale behind arguments made and positions taken.
    • Obtaining client approval for all significant written submissions before they are filed with the court.
    • Preparing the client for any potential questions or issues that might arise in upcoming sessions where their input might be needed quickly.

Concluding Benron Junbi Tetsuzuki and Transitioning to Oral Argument

1. Confirmation of Issues and Evidence for Trial:
Once the judge determines that the issues and evidence have been sufficiently organized, the Benron Junbi Tetsuzuki will be concluded. At this point, the court, in consultation with the parties, will confirm the specific disputed facts that remain to be proven through subsequent evidence examination, primarily witness testimony (CCP Art. 165(1), applied via Art. 170(5)). This defines the scope of the ensuing "concentrated examination of evidence."

2. Statement of Results in Open Court:
The key outcomes and organized points from the (closed-door) preparatory proceedings must then be formally stated by the parties in the next open court session (CCP Art. 173). This step is necessary to make the results of the preparatory work part of the official court record that can be relied upon for the judgment.

3. Restrictions on Introducing New Arguments or Evidence:
A crucial consequence of concluding Benron Junbi Tetsuzuki is the restriction on introducing new arguments or evidence thereafter. Under CCP Art. 174 (which applies CCP Art. 167), a party seeking to submit new material after this phase must, if requested by the opponent, explain to the court why it could not have been submitted earlier. Such late submissions risk being rejected as "dilatory" (jiki ni okureta kōgeki bōgyo hōhō - 時機に後れた攻撃防御方法, see CCP Art. 157), disrupting the focused trial plan. This emphasizes the importance of comprehensive preparation and disclosure during the preparatory proceedings.

The Benefits of Effective Utilization for Streamlining Litigation

When effectively utilized, Benron Junbi Tetsuzuki significantly contributes to streamlining Japanese lawsuits:

  • Focused Trial Phase: It ensures that subsequent formal oral argument hearings and witness examinations are concentrated only on genuinely disputed and outcome-determinative issues, saving court time and resources.
  • Reduced Surprises: Both parties gain a much clearer understanding of each other’s case, evidence, and legal arguments before the main trial phase, reducing the likelihood of unexpected developments.
  • Enhanced Predictability: By clarifying issues and allowing the judge to provide preliminary feedback, this phase can make the likely direction and potential outcomes of the litigation more predictable.
  • Facilitation of Informed Settlements: As the strengths and weaknesses of each side's case become clearer, parties are in a much better position to make realistic assessments and engage in meaningful settlement negotiations, often with the active encouragement of the court.
  • Overall Procedural Efficiency: It embodies the goals of the Japanese Code of Civil Procedure for fair, appropriate, and prompt (tekisei katsu jinsoku - 適正かつ迅速) dispute resolution.

Conclusion: The Indispensable Role of Benron Junbi Tetsuzuki

Benron Junbi Tetsuzuki is far more than a mere procedural checkpoint in Japanese civil litigation; it is the engine room where the core issues of a dispute are identified, refined, and prepared for final adjudication or settlement. It is a dynamic and interactive phase demanding thorough preparation, strategic thinking, and skilled advocacy from legal counsel. For businesses, understanding and actively participating in this process through their bengoshi is crucial for ensuring their arguments are effectively presented, their evidence is properly considered, and the lawsuit is managed in a way that maximizes the chances of a streamlined and favorable resolution within the Japanese legal system. Effective engagement in these preparatory proceedings can truly make or break a case.