Witness and Party Examinations in Japan: How to Prepare and Execute for a Successful Outcome?

In the intricate dance of Japanese civil litigation, while documentary evidence often lays the foundational narrative, the live testimony of witnesses (shōnin jinmon - 証人尋問) and parties themselves (tōjisha jinmon - 当事者尋問) frequently provides the crucial dynamism, credibility tests, and direct human element that can sway judicial understanding. These examinations, typically occurring after extensive preparatory proceedings, represent a concentrated effort to bring key factual disputes into sharp focus before the court.

For businesses involved in such proceedings, whether presenting their own key personnel or third-party witnesses, or preparing to cross-examine those of the opposition, a thorough understanding of the preparation, rules, and strategic execution of these examinations is vital for a successful outcome. This article offers a guide to navigating this critical trial stage in Japan.

The Purpose and Mindset for Witness and Party Examinations in Japanese Trials

Oral testimony in Japanese civil trials serves several key purposes within the broader evidentiary framework, which often emphasizes "concentrated examination of evidence" (shūchū shōko shirabe - 集中証拠調べ) as per Article 182 of the Code of Civil Procedure (CCP). This means that after issues and documentary evidence have been thoroughly organized in preparatory proceedings (benron junbi tetsuzuki), witness and party examinations are conducted in a focused manner.

1. Complementing and Contextualizing Documentary Evidence: Documents tell a story, but often an incomplete one. Oral testimony can provide essential context, explain the circumstances surrounding key documents, fill in gaps, and breathe life into the written record.
2. Direct Judicial Assessment of Credibility: This is perhaps the most critical function. It allows the judge(s) to directly observe the demeanor, consistency, and responsiveness of the person testifying, aiding in the crucial assessment of their credibility.
3. Clarifying Disputed Facts: When documents are ambiguous or conflicting, or when key events were not contemporaneously recorded, oral testimony becomes essential for attempting to establish what actually transpired.
4. Shaping the Final Narrative for Judgment: The testimony elicited, both on direct and cross-examination, forms a significant part of the overall evidence. The official record of these examinations (jinmon chōsho - 尋問調書) becomes a key source material for counsels' final arguments (final preparatory briefs - saishū junbi shomen - 最終準備書面) and for the judge's deliberations in crafting the judgment. Therefore, every question and answer should be considered with an eye toward this ultimate use.

A successful mindset for counsel involves viewing these examinations not just as a formality but as a dynamic opportunity to persuasively present their client's case and rigorously test the opponent's.

Meticulous Preparation: The Unwavering Foundation for Success

Success in witness and party examinations is overwhelmingly determined by the thoroughness of preparation.

A. Defining the Probative Theme (Risshō Tēma - 立証テーマの確認):
Before deciding who to call or what to ask, counsel must clearly define what each witness or party is intended to prove.

• Review Undisputed Facts: These don't need to be proven again, but any testimony contradicting an established undisputed fact can severely damage a witness's credibility.
• Assess Existing Documentary Proof: Determine which disputed facts are already strongly supported by documents and which require bolstering or primary establishment through oral testimony.
• Identify Key Evidentiary Gaps: Focus examinations on filling crucial gaps that documentary evidence alone cannot bridge.
• Reconfirm the Burden of Proof (Risshō Sekinin - 立証責任): Understand which party bears the burden for each contested issue that the witness will address.

B. Strategic Selection of Witnesses and Parties for Examination (Jinshō no Sentaku - 人証の選択):

• Party Examination (CCP Art. 207 et seq.): Representatives of a company (directors, employees with direct knowledge of the events) are often crucial declarants, especially in commercial disputes. Their testimony can provide the company's official perspective and account of events.
• Witness Examination (CCP Art. 190 et seq.):
  • Relevance and Necessity: Select third-party witnesses whose testimony is directly relevant to the key disputed facts and necessary to prove your case or rebut the opponent's.
  • Credibility and Demeanor: Consider the witness's likely credibility, their ability to recall events accurately, and their capacity to testify clearly and calmly, especially under the pressure of cross-examination.
  • Willingness to Cooperate: While courts can issue summonses, witness cooperation is highly desirable. Compelling an unwilling witness (coercive summons or kōin - 勾引, under CCP Art. 194, is rare in civil cases) may not yield helpful testimony.
• Collective Application: Generally, applications to examine multiple witnesses or parties should be made comprehensively at the appropriate stage of preparatory proceedings (as per Rule 100 of the Rules of Civil Procedure - RCP).

C. Determining the Order of Examination (Jinshō no Junjo - 人証の順序):
The CCP (Art. 207(2)) generally stipulates that witnesses are examined before parties. If multiple witnesses are called by one side, counsel should propose an order that presents the narrative logically and helps the court build a clear understanding of the case. The court usually follows the applicant's proposed order but can modify it.

D. The Formal Application to Examine Evidence (Shōko Mōshidesho - 証拠申出書):
A formal written application must be submitted to the court to examine a witness or party. This application typically includes:

• Identification of the Witness/Party.
• Facts to be Proven (Risshō Shushi - 立証趣旨): This is a critical element. The application must clearly and specifically state the facts that the proposed testimony is intended to establish (CCP Art. 180; RCP Art. 99(1)). Vague statements are insufficient.
• Estimated Duration of Examination (RCP Art. 106).
• Indication of Voluntary Appearance or Need for Summons.

E. The List of Questions (Jinmon Jikōsho - 尋問事項書):
Submitted with the application (or shortly thereafter), the Jinmon Jikōsho outlines the main topics or specific questions to be covered in the direct examination (RCP Art. 107).

• Purpose:
  • Informs the court about the intended scope of the direct examination.
  • Allows the opposing party to anticipate the direct testimony and prepare for cross-examination.
  • Gives the witness a general idea of the subjects they will be questioned about.
• Content: RCP Art. 107(2) requires the questions to be as specific and concrete as possible. In practice, the level of detail can vary, with some attorneys submitting a high-level list of topics while others provide more detailed questions. Some practitioners prepare multiple versions: a general one for formal submission, a more detailed internal version for court/clerk/opponent immediately before the examination, and counsel's own annotated questioning notes.

F. The Indispensable "Witness Test" (Shōnin Tesuto - 証人テスト) – Pre-Examination Witness Preparation:
Thorough witness preparation is not just permitted but is effectively mandated by the attorney's duty to investigate all evidence (RCP Art. 85). This is a critical phase.

• Objectives of Preparation Sessions:
  • Confirm Factual Recollections: Review in detail all relevant facts the witness can testify to, cross-referencing with their prior written statement (Chinjutsusho, if any) and other evidence.
  • Ensure Consistency and Accuracy: Identify and address any inconsistencies or inaccuracies in their potential testimony.
  • Assess Demeanor and Communication: Evaluate how the witness presents themselves and communicates, providing guidance on clarity and composure.
  • Familiarize with Courtroom Procedure: Explain the layout of the courtroom, the roles of individuals present, the oath-taking process (CCP Art. 201, requiring the witness to bring their personal seal - inkan), the nature of direct and cross-examination, and the serious implications of perjury (gishōzai - 偽証罪).
  • Practice Questioning (Rehearsal): Conduct mock examination sessions based on anticipated direct examination questions and potential cross-examination areas. Emphasize:
    • Answering truthfully and based on personal knowledge.
    • Listening carefully to the entire question before answering.
    • Providing clear, concise answers; avoid volunteering unsolicited information or speculating.
    • Remaining calm under pressure.
    • How to respond if they don't understand a question or don't know an answer ("I don't understand," or "I don't recall").
  • Review of Chinjutsusho: If a written statement was submitted, the witness should re-read it thoroughly but be cautioned against simply memorizing it. Testimony should still be natural and in their own words.
• Ethical Boundaries in Preparation: This is crucial. Witness preparation must never cross the line into coaching a witness to give false testimony or distorting their genuine recollections. The attorney's duty is to help the witness present their truthful testimony effectively, not to fabricate it (Attorney Duties Basic Rules, Art. 5 – Duty to Respect Truth; Art. 75 – Prohibition of Submitting False Evidence).

Navigating the Examination in Court: Rules and Etiquette

The examination process itself is governed by specific rules and established courtroom etiquette.

1. General Principles:

• Adherence to Court Decorum: Professional conduct and respect for the court are expected at all times.
• Clarity of Speech: All questions and answers must be spoken clearly and at an appropriate volume for the judge(s), opposing counsel, and the court stenographer to hear (testimony is recorded - RCP Art. 68). If interpreters are used, this is even more critical, with pauses needed for interpretation.

2. Scope of Questioning (RCP Art. 114):

• Direct Examination (Shu-jinmon - 主尋問): Generally limited to the matters outlined in the Jinmon Jikōsho (facts intended to be proven) and matters directly related thereto.
• Cross-Examination (Hantai-jinmon - 反対尋問): Primarily limited to matters raised during the direct examination, issues directly related to those matters, and questions pertaining to the witness's credibility.
• Re-Direct Examination (Sai-shu-jinmon - 再主尋問): Limited to clarifying or responding to matters raised during cross-examination.
  The presiding judge has the authority to restrict questions that fall outside these permitted scopes if deemed inappropriate (RCP Art. 114(2)).

3. Prohibited and Restricted Questions (RCP Art. 115):
Questions posed during examination should generally be specific and concrete. The following types of questions are generally prohibited or restricted, particularly during direct examination (though some, like leading questions, are more permissible on cross-examination), unless there is a justifiable reason:

• Questions that insult or unduly embarrass the witness.
• Leading Questions (Yūdō Jinmon - 誘導尋問): Questions that suggest the desired answer.
• Repetitive questions that have already been asked and answered.
• Questions irrelevant to the points in dispute.
• Questions asking for the witness's personal opinion (unless they are an expert witness testifying within their expertise).
• Questions about facts the witness did not directly experience (i.e., hearsay, unless an exception applies).
  The judge can restrict such questions on their own initiative or upon objection from opposing counsel.

4. Use of Documents and Exhibits During Examination (RCP Art. 116):
Counsel may, with the judge's permission, use documents, diagrams, photographs, or other physical objects to aid in questioning a witness.

• If a document or object to be shown to the witness has not yet been formally examined as evidence, it must generally be shown to the opposing party before being used in questioning, unless the opponent does not object.
• A witness may be asked by the judge to mark or annotate a diagram or photograph, and such marked items can be formally incorporated into the court record (RCP Arts. 116(3), 119).

5. Making Objections (Igi - 異議) (RCP Art. 117):
Counsel has the right to make objections to certain judicial rulings concerning the conduct of the examination, such as the judge's permission or restriction of questions. Objections must be made promptly after the ruling in question.

Techniques for Effective Direct Examination (Shu-jinmon)

The goal of direct examination is to elicit clear, credible, and persuasive testimony from your witness or client that supports your case theory.

1. Questioning Style: Primarily use open-ended questions (who, what, when, where, why, how) to allow the witness to narrate in their own words. Avoid leading questions, as testimony elicited through them carries less weight.
2. Structure and Flow: Organize questions logically, often chronologically or thematically, to build a coherent and easy-to-follow narrative for the court.
3. Pacing and Clarity: Ensure questions are clear and unambiguous. Speak at a moderate pace. Listen carefully to the witness's answers to ensure they have understood and responded appropriately.
4. Verbalizing Actions: If a witness points to a diagram or document, counsel should verbalize the reference for the record (e.g., "You are indicating the section marked 'A' on Exhibit Ko No. 3, is that correct?").
5. Handling Difficult or Forgetful Witnesses: If a witness struggles to recall details, counsel may (with court permission) attempt to refresh their memory, often by showing them a document they previously created or reviewed (like their Chinjutsusho or a contemporaneous note). This must be done carefully to avoid accusations of coaching.

Strategies for Robust Cross-Examination (Hantai-jinmon)

Cross-examination aims to test the veracity and reliability of the opposing witness's testimony, expose inconsistencies, highlight biases, or elicit admissions favorable to your client.

1. Exhaustive Preparation: This is non-negotiable. It involves a deep understanding of:
   • The witness's Chinjutsusho and any prior statements.
   • All relevant documentary evidence.
   • Potential inconsistencies between the witness's account and other evidence.
   • The witness's potential biases, interests, or motives.
2. Questioning Style: Leading questions are generally permissible and often highly effective on cross-examination, as they allow counsel to control the witness and direct them towards specific points.
3. Key Areas of Focus:
   • Prior Inconsistent Statements: Confronting the witness with discrepancies between their current testimony and their Chinjutsusho, depositions (if any from other jurisdictions or contexts), or other documented statements.
   • Contradictions with Other Evidence: Highlighting how the witness's testimony conflicts with established documentary evidence or the testimony of other, more credible witnesses.
   • Bias, Interest, or Motive to Misrepresent: Exploring any factors that might color the witness's testimony.
   • Implausibility or Lack of Foundation: Challenging aspects of their story that seem illogical, improbable, or lack adequate observational basis.
   • Testing Perception and Memory: Questioning the witness's ability to have accurately observed or recalled the events they describe.
4. Strategic Use of Impeachment Evidence (Dangai Shōko - 弾劾証拠):
   Introducing documents or other evidence specifically to discredit the witness's testimony. Under RCP Arts. 102 and 116(2) proviso, such documents (if not previously examined as evidence for substantive purposes) can often be presented to the opposing party shortly before or during their use for impeachment. However, if such evidence is also substantively important and could have been submitted earlier, there's a risk of it being challenged as a belated submission.
5. Knowing When to Stop: A critical skill in cross-examination is recognizing when a point has been effectively made and refraining from asking "one question too many" that might allow the witness to explain away a damaging admission or clarify an inconsistency to their advantage.

Re-Direct and Re-Cross Examination

• Re-Direct Examination (Sai-shu-jinmon): Following cross-examination, the party who called the witness has an opportunity to conduct re-direct examination. This is limited to clarifying or rehabilitating testimony that was challenged or became ambiguous during cross-examination, or addressing new matters that arose.
• Re-Cross Examination (Sai-hantai-jinmon - 再反対尋問): If re-direct examination occurs, the opposing party may have a limited opportunity for re-cross, typically confined to matters raised during re-direct.

The Examination Record (Jinmon Chōsho) and Its Post-Examination Significance

All oral testimony during these examinations is officially recorded by a court stenographer, resulting in a formal transcript known as the jinmon chōsho.

• This transcript is a crucial part of the official court record.
• Attorneys will obtain copies (tōsha - 謄写) of this record (usually available some weeks after the hearing) and rely on it heavily when drafting their final preparatory briefs (saishū junbi shomen), where they will quote or refer to key portions of the testimony to support their arguments.
• The judge(s) will also use this record, alongside all other evidence, in their deliberations and when writing the final judgment.

Special Considerations for Foreign Witnesses or Parties Testifying

When representatives or witnesses from foreign companies testify in Japanese courts:

1. Language and Interpretation: Ensuring access to highly skilled and experienced legal interpreters is absolutely essential. Witnesses should be prepared for the dynamics of simultaneous or consecutive interpretation, including the need for clear, concise statements and appropriate pauses.
2. Cultural Differences in Communication Styles: Nuances in communication style, body language, or expressions of deference can sometimes be misinterpreted. Preparation should include some awareness of Japanese courtroom etiquette.
3. Logistical Challenges: Arranging for testimony from witnesses based overseas can involve significant logistical planning, whether for in-person appearance or, in very limited and court-approved circumstances, potentially via video link (though in-person testimony is the strong norm and preference for substantive witnesses).

Conclusion: The Art and Science of Examination in Japanese Trials

Witness and party examinations are a demanding yet pivotal phase of Japanese civil litigation. They require an intricate blend of meticulous legal and factual preparation, strategic questioning techniques, a profound understanding of procedural rules and ethical boundaries, and the ability to think critically and adapt in the dynamic environment of the courtroom. For businesses, ensuring that their key personnel and supporting witnesses are thoroughly prepared by skilled Japanese counsel is an investment that can decisively influence the court's perception of the facts and, ultimately, the outcome of the dispute. The credibility established—or lost—during these oral exchanges often carries immense weight in the scales of Japanese justice.