The Power of Written Statements (Chinjutsusho) in Japanese Trials: A Strategic Guide for Businesses

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

In the landscape of Japanese civil litigation, where meticulous preparation and strategic presentation of evidence are paramount, the written statement, or Chinjutsusho (陳述書), emerges as a uniquely influential tool. While live witness testimony remains a cornerstone of the trial process, the Chinjutsusho—a formal written declaration of facts by a party to the lawsuit, a person connected to a party, or a third-party witness, submitted to the court as documentary evidence—plays a multifaceted and often decisive role in shaping the court's understanding and ultimately, the outcome of a case.

For businesses involved in litigation in Japan, understanding how to strategically leverage the Chinjutsusho can provide a significant advantage. This article delves into the functions, benefits, potential pitfalls, and best practices associated with these critical written statements.

The Multifaceted Role of Chinjutsusho in Japanese Litigation

Although not explicitly detailed as a distinct category of evidence in the Code of Civil Procedure itself, the Chinjutsusho has become firmly established in Japanese legal practice and serves several vital functions, particularly during the preparatory proceedings (benron junbi tetsuzuki) and leading into the concentrated examination of evidence.

1. Streamlining Direct Examination (Shū-jinmon Daitai Kinō - 主尋問代替機能):
Traditionally, one of the primary functions of a Chinjutsusho is to streamline the process of direct examination (the initial questioning of a witness by the party who called them). Instead of counsel eliciting every piece of information through live oral testimony, a comprehensive Chinjutsusho can lay out:

  • The declarant's background, qualifications, and relationship to the case.
  • Undisputed factual matters or complex technical details.
  • A chronological account of relevant events from the declarant's perspective.
    By submitting such a statement in advance, the live direct examination can then be more focused, often involving the attorney briefly confirming the contents of the Chinjutsusho with the witness and then concentrating on the most critical disputed issues. This makes efficient use of limited court time and often allows for a greater portion of the allocated hearing time to be dedicated to cross-examination by the opposing party.

2. Pre-Disclosure of Testimony (Kyōjutsu Jizen Kaiji Kinō - 供述事前開示機能):
When a Chinjutsusho is submitted from an individual who is scheduled to testify, it serves as a pre-disclosure of their likely direct testimony. This provides both the court and the opposing counsel with a clear understanding of what the witness will say. For the opposing party, this is invaluable for preparing an effective cross-examination. They can scrutinize the written statement, compare it with other evidence, identify potential inconsistencies or weaknesses, and formulate targeted questions.

3. Aiding Issue and Evidence Organization (Sōten Seiri Kinō - 争点整理機能):
During the preparatory proceedings, judges strive to narrow down the disputed factual and legal issues. While formal pleadings (complaint, answer, preparatory briefs) outline the main arguments, a Chinjutsusho can provide a more narrative and detailed account, particularly concerning important indirect facts (kansetsu jijitsu - 間接事実) or background circumstances that might not be fully elaborated in the more structured legal briefs.
This helps the judge:

  • Grasp the overall story or context from each party's viewpoint.
  • Better distinguish between genuinely disputed facts and those that are not centrally contested.
  • Identify the true points of contention that require focused examination of witnesses.
    A well-drafted Chinjutsusho can thus significantly contribute to the court's ability to effectively organize the issues and plan for a more efficient concentrated examination of evidence. While some legal practitioners debate the appropriateness of using Chinjutsusho solely for issue organization (arguing that primary pleadings should be in preparatory briefs), those that genuinely aid in case clarification and highlight core disputes are generally viewed positively by the courts.

4. Other Practical Functions:
Beyond these core legal functions, Chinjutsusho can also:

  • Accelerate Attorney Preparation: The process of drafting a Chinjutsusho compels attorneys and their clients/witnesses to thoroughly review facts and evidence early on.
  • Assist Court Clerks: A clear written statement can aid court clerks in preparing accurate records of testimony if the Chinjutsusho is largely adopted by the witness during their oral testimony.
  • Enhance Party Participation and Catharsis: For parties directly involved in the dispute, contributing to and signing a Chinjutsusho can provide a sense of active participation in the legal process. It also offers an avenue to formally present their complete narrative and perspective to the court, which can sometimes have a cathartic effect ("gas venting" - ガス抜き), particularly regarding aspects that might not be strictly legal but are emotionally significant. This underlying sentiment, once understood by the court, can sometimes indirectly facilitate settlement discussions.

Potential Drawbacks and Criticisms of Chinjutsusho Usage

Despite their utility, the use of Chinjutsusho is not without potential downsides or criticisms, which attorneys must navigate carefully:

  1. Tension with Principles of Directness and Orality (Chokusetsu Shugi / Kōtō Shugi - 直接主義・口頭主義):
    A significant concern is that an over-reliance on written statements might dilute the principles of directness (the judge directly hearing and observing the witness) and orality (testimony being delivered orally in court). If the Chinjutsusho effectively replaces live direct examination, the witness examination could become a mere formality, diminishing the judge's ability to assess witness demeanor and credibility firsthand. This risk is mitigated if the Chinjutsusho serves to streamline, rather than entirely supplant, focused oral testimony on key disputed points.
  2. Risk of Pre-Forming Judicial Impressions Unduly:
    A meticulously crafted, highly persuasive Chinjutsusho, often prepared with significant attorney input, submitted early in the proceedings, could potentially lead the judge to form strong preliminary views before hearing live, spontaneous testimony and cross-examination. While judges are trained to remain impartial, the power of a well-written narrative can be substantial.
  3. Impact on Cross-Examination Dynamics:
    While pre-disclosure aids the opponent's preparation for cross-examination, it can also be argued that it allows the witness to be more thoroughly prepared to deflect or manage challenging questions, potentially reducing the effectiveness of spontaneous cross-examination. Furthermore, if the Chinjutsusho significantly curtails the scope of live direct examination, it might be argued by opposing counsel that the scope for cross-examination (which is generally limited to matters raised in direct examination or affecting credibility, as per Rule 114(1)(i) of the RCP) is also unfairly restricted.
  4. The "Attorney Factor": Risk of Undue Influence in Drafting:
    This is perhaps the most frequently voiced concern. Because Chinjutsusho are typically drafted with substantial assistance from legal counsel, there is a risk that the statement becomes more a reflection of the attorney's strategic construction of the case rather than the witness's pure, unvarnished recollection. Attorneys might inadvertently or intentionally shape the narrative, smooth over inconsistencies, or emphasize favorable points in a way that doesn't fully capture the witness's original, perhaps more nuanced or uncertain, memory. This raises ethical considerations regarding the duty of truthfulness and the prohibition against submitting false or misleading evidence (as per Article 75 of the Basic Rules of Bengoshi Duties).

Strategic Drafting of an Effective Chinjutsusho: Best Practices for Businesses

To harness the power of a Chinjutsusho while mitigating its risks, meticulous and ethical drafting is essential.

1. Collaboration Between Declarant and Counsel:
The Chinjutsusho must be the declarant's statement. While counsel's role is to guide and structure, the content must originate from and be genuinely affirmed by the individual making the statement.

  • The attorney should conduct thorough interviews with the declarant to understand their firsthand knowledge.
  • The statement should, as much as possible, reflect the declarant's own way of speaking and recalling events, even if counsel refines the language for clarity and legal relevance.

2. Unwavering Commitment to Truthfulness and Accuracy:
This is paramount. The declarant must understand their obligation to be truthful, and counsel has an ethical duty (under Article 5 of the Basic Rules of Bengoshi Duties regarding respect for truth) to ensure the statement is accurate and not misleading.

  • All factual assertions should be carefully verified against the declarant's memory and, where possible, corroborated by other evidence.
  • Any known inconsistencies or uncertainties should be addressed honestly, rather than being glossed over.

3. Content and Structure for Maximum Impact:

  • Clear Identification: The Chinjutsusho should begin by clearly identifying the declarant, their full name, address, occupation, and their relationship to the case or the parties involved.
  • Logical Narrative Flow: Whether chronological or thematic, the statement should present facts in a clear, coherent, and easy-to-follow manner. Headings and subheadings can improve readability for longer statements.
  • Focus on Personal Knowledge: The core of the Chinjutsusho must be based on what the declarant personally saw, heard, did, or experienced. It is crucial to distinguish firsthand knowledge from hearsay, speculation, or opinion (unless the declarant is an expert providing an opinion within their expertise).
  • Specificity and Detail: Vague or general statements carry little evidentiary weight. The Chinjutsusho should provide concrete details – dates, times, locations, persons involved, specific actions taken, precise words spoken in conversations, etc. – to the extent the declarant can accurately recall them.
  • Addressing Key Issues Directly: Ensure the statement directly addresses the factual points that are most relevant to the declarant's testimony and the disputed issues in the lawsuit.
  • Consistency: The Chinjutsusho must be consistent with other evidence submitted by your side and with any prior statements or pleadings. Inconsistencies can severely damage credibility.
  • Language and Tone: The language should be clear, straightforward, and credible. While advocating a position, an overly argumentative, emotional, or biased tone can undermine the statement's persuasiveness.
  • Signature and Date: The declarant must personally sign and date the Chinjutsusho, affirming its truthfulness.

4. The Attorney's Role in the Drafting Process:
The attorney's role is not to "put words in the witness's mouth" but to:

  • Help the declarant recall and organize their memories.
  • Ensure the statement focuses on legally relevant facts.
  • Assist in expressing the declarant's account clearly and unambiguously.
  • Structure the statement logically for maximum impact on the court.
  • Identify and discuss any potential inconsistencies or weaknesses in the proposed testimony.
    This often involves an iterative process of interviewing, drafting, and reviewing with the declarant.

5. Referencing Supporting Documents:
If the Chinjutsusho refers to specific documents, these should be clearly identified (e.g., by their exhibit numbers if already submitted, or by a clear description if not) to allow the court to cross-reference the statement with other evidence.

Strategic Timing: When to Prepare and Submit a Chinjutsusho

1. Early Preparation of Drafts:
Even if the formal Chinjutsusho is submitted later in the proceedings, it is good practice for attorneys to gather detailed statements from key individuals (parties or friendly third-party witnesses) as early as possible. This could be during the initial case investigation, pre-litigation, or shortly after the complaint and answer are filed. This early documentation aids in:

  • The attorney's own understanding and assessment of the case.
  • Preserving recollections while they are fresh.
  • Identifying potential strengths and weaknesses in testimony.
  • Maintaining consistency in the presentation of facts throughout the litigation.
  • Reducing the burden on witnesses by avoiding repeated comprehensive interviews later on.

2. Typical Submission Point in Litigation:
The most common time for submitting Chinjutsusho from individuals who will testify is towards the end of the preparatory proceedings (benron junbi tetsuzuki), often in conjunction with the formal application to the court for the examination of those witnesses. By this stage, the main disputed issues have usually been clarified, allowing the Chinjutsusho to be tailored to address these specific points.

3. Strategic Considerations for Early Submission:
In certain circumstances, an attorney might strategically choose to submit a particularly strong and well-supported Chinjutsusho from a key party or witness earlier in the proceedings. The potential aims could be:

  • To strongly demonstrate the merits of their case from the outset.
  • To encourage an early and favorable settlement.
  • To proactively shape the court's initial understanding of the key facts.
    This is generally a higher-risk tactic, as it involves revealing a significant part of one's testimonial evidence early on. It requires strong confidence in the robustness and credibility of the statement and the declarant.

The Chinjutsusho in the Broader Evidentiary Context

  • Relationship with Documentary Evidence: A compelling Chinjutsusho is often one that is consistent with, and ideally corroborated by, existing documentary evidence. It frequently serves to explain the circumstances surrounding key documents or to provide context that the documents themselves do not fully convey.
  • Foundation for Oral Testimony: The Chinjutsusho forms the primary basis for the declarant's subsequent live testimony. The witness must be thoroughly familiar with their written statement and prepared to testify consistently with its contents, as well as to elaborate on and clarify points under questioning.
  • Target for Opposing Counsel: Opposing counsel will meticulously scrutinize every Chinjutsusho submitted by the other side, looking for inconsistencies (internal or with other evidence), omissions, ambiguities, and areas of weakness to exploit during cross-examination.

The preparation and submission of Chinjutsusho are governed by strict ethical obligations for Japanese bengoshi:

  1. Duty of Truthfulness: Counsel must not knowingly prepare or submit a Chinjutsusho that contains false or misleading statements (Article 75 of the Basic Rules of Bengoshi Duties prohibits the submission of false evidence).
  2. Avoiding Improper Influence: While it is counsel's role to assist the declarant in articulating their statement effectively, they must scrupulously avoid coaching the witness to give false testimony or distorting their genuine recollections to fit a desired narrative.
  3. Balancing Zealous Advocacy with an Overriding Duty to the Truth and the Court: The objective is to present the client's case persuasively, but this must always be done within the ethical boundaries of truthfulness and respect for the integrity of the judicial process.

Conclusion: Leveraging the Chinjutsusho for Strategic Advantage in Japanese Trials

The Chinjutsusho is a potent and versatile evidentiary instrument in Japanese civil trials. It serves multiple crucial functions, from streamlining court proceedings and pre-disclosing the substance of testimony to fundamentally aiding in the organization and clarification of disputed issues. Its power lies in its ability to present a coherent, detailed, first-person narrative that, when drafted with skill, accuracy, and ethical integrity, can significantly bolster a party's case and persuasively influence the court.

However, the effective creation and deployment of a Chinjutsusho demand meticulous attention to detail, a steadfast commitment to truthfulness, and a nuanced understanding of its strategic role within the broader litigation strategy. For businesses engaged in the Japanese legal system, deep collaboration with their Japanese counsel in the preparation and strategic use of these written statements is indispensable for harnessing their full potential and advancing their case towards a favorable resolution.