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  • Bar exams in Japan– “New” vs. “Old”, and how lawyers in Japan become.

    Posted by Dr. ARUDOU, Debito on December 5th, 2006

    Hi Blog. Blogging post here from a friend with permission. Fascinating account of how people become lawyers in Japan, and the sea change in Japan’s Bar Exam system, which people of course must pass to qualify. Won’t summarize. Read on. Debito in Sapporo

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    Japan’s bar exam (司法試験–shihou shiken) is no longer called that — it’s called either
    the 旧司法試験 kyuu shihou shiken or the 新司法試験 shin shihou shiken.

    1. 旧司法試験–the “Old Bar”

    Since the 1950s, Japan’s bar association has operated a very simple
    procedure for becoming a lawyer: pass the bar exam. That’s it. No law
    schools. No pre-exam training. Applicants did not even have to
    graduate from a university. After you passed you went and did 司法研修,
    managed by the Supreme Court, and then you were a lawyer (or
    prosecutor, or judge). End of story.

    While that might sound liberal, the results were not egalitarian — or
    to frame it in Japanese con law terms, 形式的平等はあったのに、実質的平等にはなかった, i.e.
    the opportunity was equal but the results were not. The pass rate was
    typically 1%, and half of all attorneys are from Japan’s top six
    universities (Todai, Kyodai, Keio, Chuo, Waseda, Hitotsubashi). More
    than 90% have undergraduate degrees in law, the average attorney
    passes the exam on the fifth try, and the average age of admittance to
    the bar bar is 28. That means many, many hopeful attorneys wasted
    years of their lives studying hard for the exam, many of whom had to
    give up in their 30s (or even 40s), having lost much of their young
    professional lives.

    The exam structure is such: 60 multiple choice questions in May, pass
    rate 20%. Then two days of essays in July, pass rate 15%. Then a
    spoken exam in January, pass rate 95%. That comes down to about 1-3%
    in total. The laws tested are the Constitution, Civil, Criminal,
    Commercial, Crim Procedure, and Civ Procedure.

    2. 新司法試験–the “New Bar”

    Japan took a major step towards revolutionizing its legal sector in
    2004 when it opened American-style law schools. The standard course is
    three years (or two years for students with undergraduate degrees in
    law). The first “new bar exam” was held this past May, and the pass
    rate was 48% (for comparison purposes, that’s the same as California.)

    However, the functional results are the same. I mean, 40,000 people
    applied for these new schools, 3,000 got in, only 2,000 sat for the
    exam, and 1,000 passed. So from 40,000 applicants to 1,000 lawyers
    means the bar is accomplishing the same result, in that many, many
    people who sit for the old bar will never pass it, and rejecting them
    from the get go is a more effective way of not getting the hopes up of
    people who will never become lawyers.

    The exam structure is such: Day 1 is multiple choice; Day 2 is an
    essay on the special subject you study and the Constitution; Day 3 is
    an essay on Civil Law; and Day 4 is an essay on Criminal Law. The
    laws tested are the original six, plus Administrative Law and one
    選択科目: Bankruptcy, Labor, IP, International Law, Economic Law, and a
    few others.

    3. Dual regime: 2006-2011

    The “old bar exam” will remain in place until it is phased out in
    2011. Anyway, it’s my intention to give this old exam an honest try
    for the few years that I’m working. And the weird thing is, although
    structurally and historically different, lots of Japanese and US law
    is the same.

    4. Reasons to change

    There are lots of reasons to change to a new system:
    A. A “quota” (i.e. we will admit 1,500 lawyers this year) as opposed
    to a score (everyone over 80% passes) means that the quality of
    lawyers varies by year in accordance with the respective competition.

    B. Lots of people waste years, even a decade or more of their life
    studying for the exam. In a society with a declining population,
    that’s a tough strain on the workforce and denies businesses access to
    hiring rather smart people who are under the delusion that they can be
    lawyers.

    C. Despite studying for five or more years or however many years, most
    lawyers aren’t very good! They’re trained in the theory of law, but
    not the practice, and are often bookworms or introverts, and not made
    to go out and reassure clients that they are representing them to the
    fullest.

    D. The demand for lawyers had forced the pass rate up. Until 2000,
    the pass rate was 1%. By 2005 the pass rate was 3.8%, but lowering
    the bar pass rate given the incumbent exam regime just aggravated
    problem C.

    E. The lack of competent business attorneys has meant a massive influx
    of foreign attorneys, who have maneuvered into a position where they
    come close to dominating the major transactions in the Tokyo legal
    world.

    That’s my summary — the long-ish version, although I could share much more…
    ENDS

    6 Responses to “Bar exams in Japan– “New” vs. “Old”, and how lawyers in Japan become.”

    1. debito Says:

      Forwarding from a friend. Debito

      ============================All in all I think it’s a fair post. I would say though that in regards to the comments about Japanese lawyers being ill-trained under the old system, they’ve got between one to even eight or nine years studying legal theory for the exam. Beyond that, the mandatory Japanese Supreme Court Legal Training and Research Institute is one and a half years and it’s very practical comparatively.
      American lawyers have a three year training degree post-college and then they try to pass the bar in their state of choice. The new Japanese system is similar, except graduates who pass the bar still go to the Supreme Court practical program.

      Ultimately, comparatively speaking, I would say Japanese students get at least as much practical training as American students, if not more in some cases (depending on what courses American students choose to take).

      Also while it’s true that many students “waste” years of their life failing the Japanese bar exam which is quite difficult to pass, a lot of those individuals who have an undergraduate degree in law can automatically take positions that, in America, would require an individual to have passed the bar. This includes, for example, various kinds of legal work with the tax system or various areas of administrative law.

      Finally, I would add that while it’s very difficult to become a lawyer in Japan still, the positive side of that negative is that there are relatively few lawyers. That means once you are a lawyer, finding gainful employment is relatively easy. In America, lawyers are often generated by the educational system with no concern as to whether the market can support them. As a result, top students can find good jobs easily, but many find it extremely difficult.

      Enough of that. Nothing too important…just adding a little balance in the analysis. I’m no expert in the subject though. END

    2. Original Post Contributor Says:

      Many excellent points, to which I respond below in brief.

      I would say though that in regards to the comments about Japanese lawyers being ill-trained under the old system, they’ve got between one to even eight or nine years studying legal theory for the exam.

      The problem is, the theory is good to be a lawyer, but lawyers in Japan never study how to think like lawyers. A frequent criticism from clients is that bengoshi are unable to competently advocate their interests in the courtroom, and bill clients for hours of research to draft memos without answering questions. (You don’t want to know how many times have I seen a bengoshi spend days pulling all-nighters at the office to conclude a complicated legal question with a big fat “maybe.”)

      Beyond that, the mandatory Japanese Supreme Court Legal Training and Research Institute is one and a half years and it’s very practical comparatively.

      Not really — it’s recognized as so impractical that as of next year its being reduced to 12 months (and it was 24 months until 2003), consisting of 3 months with a judge, 3 months with a prosecutor, 3 months with an attorney, and 3 months in other training. It’s very good to learn procedure, but the problem of creative legal thinking and client advocacy remains a problem, which the new law schools are trying to tackle.

      American lawyers have a three year training degree post-college and then they try to pass the bar in their state of choice. The new Japanese system is similar, except graduates who pass the bar still go to the Supreme Court practical program.

      There are plenty of flaws in the US legal education system, but its biggest merit is that students don’t study for the bar until after they graduate, and they have three years to learn how to think like a lawyer. While the first year is basic legal education consisting of contracts, criminal law, and property, the second and third years afford students the freedom to focus on what they want to do, whether it be clerking for a judge, working at a firm, interning at the DA’s office, or assisting public interest groups. Instead of focusing on the basic 六法, students can study advanced courses on M&A buyouts or enviromental regulation law, depending on what they want their legal careers to focus on. Indeed, one must ask the practical importance of requiring an attorney who will spend his or her entire career drafting contracts to spend half a year in a prosecutor’s office and with a judge.

      Ultimately, comparatively speaking, I would say Japanese students get at least as much practical training as American students, if not more in some cases (depending on what courses American students choose to take).

      The Japanese Bar Association disagrees with you. The “old” model of studying only theory is being discarded for the American model.

      In close, the biggest area where foreign lawyers have changed the market in Tokyo is 1.) specialization and 2.) size. Ten years ago, most lawyers tried to practice every area of the law, which is a pretty inefficient business model and expensive. In 1996 the biggest firm in Tokyo had 30 bengoshi; today there are 7 Japanese firms with more than 100. The size has allowed specialization, so attorneys can focus on a specific practice area.

      From the criminal side, regarding “zealous advocacy,” consider this: 30% of all criminal prosecutions in the US result in convictions, compared to a whopping 90% in Japan. I’ve heard all sorts of horror stories about defense attorneys who essentially admit that their client is guilty and throw in the hat. Lawyers need to learn how to defend their client’s interests as best they can, not concede points detrimental to their clients based on legal theory that they studied to pass the bar.

      I say all this as a NY attorney who has worked in Tokyo at several firms, both Japanese, Western, and joint ventures. I wouldn’t hold myself out as an expert, but this is from direct observation and experience.

    3. Canon Says:

      All fair points. I certainly haven’t been through the old Japanese system to say how practical it is. I would probably agree based on what I know that the switch to the new system is a healthy one. I guess my main point was that the same complaints about lack of practical training are brought in regards to the American system (though there are varying options for additional training). Ultimately though, I think anywhere you go, most lawyers don’t know what the hell they’re doing when they pass the bar and start practice.

      I hadn’t really thought about lawyers as a source of the problems in the criminal system, but I think it makes sense. I do agree that it’s a bad idea to have corporate lawyers in Japan doing criminal defense on the side as pro bono, which I’ve seen.

      That being said, the high rate of successful prosecution also have a great deal to do with the system as a whole. The same complaints can be raised in regards to the civil law countries in Europe on which the Japanese legal system was originally based. The reasons are different now for high rates of successful prosecution, but I would speculate that aspects of the general attitude towards criminal justice is similar.

    4. Original Post Contributor Says:

      I guess my main point was that the same complaints about lack of practical training are brought in regards to the American system (though there are varying options for additional training).

      Beyond training, post-qualification specialization is a big difference between the way lawyers practice in the US and Japan. By their third or fourth year, most US attorneys have focused on one practice area, whether it be labor regulation, mergers, high finance, civil rights, trademark litigation, or criminal defense, which has created a number of experts in each field. In Japan, generalization remains the rule for most attorneys except those at the largest firms. Lawyers are trained in every area of the law, but there are few real experts. This is what the new system is designed to address.

      I do agree that it’s a bad idea to have corporate lawyers in Japan doing criminal defense on the side as pro bono, which I’ve seen.

      From one perspective, it’s a different way of working pro bono. The ABA requires attorneys to spend 50 hours a year on pro bono activities of their choice. Japan’s Nichibenren has no such requirement, but instead, judges call attorneys seemingly at random to act as defense lawyers. This is what happens in a system with no public defense lawyers — however, the Nichibenren has recognized this problem and introduced a rudimentary public defense system this year, which will be fully implemented in 2009.

      Ultimately though, I think anywhere you go, most lawyers don’t know what the hell they’re doing when they pass the bar and start practice.

      Indeed. Like everything, education is important, but nothing trumps experience.

    5. Canon Says:

      Thanks for taking the time for thoughtful commentary and response. Much appreciated.

      It’s always good (for me) to know more attorneys in Tokyo. If you don’t mind providing a contact, feel free to send me an email. You can look me up http://dir.unc.edu/dir/search/search.jsp, first name Canon.

    6. Michael H. Fox Says:

      Let me make a couple of corrections:

      The following statistics are incorrect

      –From the criminal side, regarding “zealous advocacy,” consider this: 30% of all criminal prosecutions in the US result in convictions, compared to a whopping 90% in Japan.–

      In the US: about 95% of contested criminal cases are plea bargained. Of those cases that are contested, 20% end in not guilty verdicts/ 80% in guilty verdicts. I believe the above statistic–70% of prosecutions not ending in convictions– is farfetched.

      In Japan, the conviction rate over the last 15 years is above 99%. I can provide statistics if necessary.

      __ I’ve heard all sorts of horror stories about defense attorneys who essentially admit that their client is guilty and throw in the hat. Lawyers need to learn how to defend their client’s interests as best they can, not concede points detrimental to their clients based on legal theory that they studied to pass the bar.__

      This problem is terribly prevalent in the states. One of the leading causes of wrongful arrests is dreadful legal representation, lawyers who think their client is guilty and through in the towel. See http://www.mark-kirk.org

      Speak Truth to Power

      Michael H. Fox
      Japan Death Penalty Information Center
      http://www.jdpic.org

      Association to Free Mark Kirk
      http://www.mark-kirk.org

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