No Joke: Send More Lawyers
For centuries, Japan’s harmonious methods for settling disputes helped shape the nation’s cultural identity. And as recently as the 1980s, the country credited its relative paucity of lawyers as one reason Japan Inc. was drubbing the rest of the world.
Of course, Japan today, with its struggling economy, is no longer so fearsome. And it might be sheer coincidence, but suddenly the Japanese need lawyers--so desperately that they’re offering special payments to attorneys willing to move to the country’s mostly rural lawyer-free zones.
That’s right, subsidies for lawyers. While small towns in America often help foot the bill for doctors willing to move to their communities, Japan is doing the same for lawyers, guaranteeing them an annual income of as much as $150,000.
Masaki Kunihiro, 54, was the first to sign up under the so-called Sunflower Fund program. He had visions of a quiet, rustic life when he moved to Hamada, on the Japan Sea, last year. After decades spent in Kyoto and Tokyo, he looked forward to lots of time to read, hike and grow vegetables. He has managed to start a small garden, but his books remain unpacked eight months later as he deals with an enormous pent-up demand for legal services.
“The first day I arrived in my office, there were 15 people waiting,” Kunihiro said. “It’s been a veritable flood ever since.”
The ability of the Japanese to mediate and compromise their way to agreement and consensus paid huge dividends in the years after World War II by skirting obstacles to economic progress. While Americans, in particular, learned to sue anything that moved, Japan made its way in the global marketplace unburdened by the costly delays of lawsuits.
Humorist Russell Baker once suggested that, to level the playing field, the United States send Japan a lawyer every time Japan sends the United States a car.
Evidence suggests, however, that the Japanese are quick to fight for their rights in court if given half a chance. As cost and regulatory barriers fall, the number of shareholder, copyright protection, civil and criminal lawsuits has more than doubled since 1990.
Some recent examples: Shareholders have filed a $1.7-billion class-action suit against Sumitomo Corp. over its massive copper-trading losses. Mitsubishi Motors stockholders are contemplating a suit over the auto maker’s two-decade-long cover-up of consumer complaints. And Dai-Ichi Kangyo Bank and Cosmo Securities have settled shareholder suits alleging management misdeeds out of court.
That said, the Japanese doubt they will ever become as litigious as Americans.
“I think Japanese people have more common sense,” said Etsuko Asanaka, a secretary at the Iwami Legal Counseling Center in Shimane prefecture. “I’ve heard that some Americans sue fast-food restaurants if they spill coffee on themselves. Japanese know how to take responsibility.”
Japan has just 4% as many lawyers as the United States. Japan has set a goal of reaching France’s level of one lawyer per 1,900 people. That compares with its current level of about one per 7,155 people and America’s world-beating one lawyer per 295 people.
The relative scarcity of lawyers here is the result not only of a consensus-driven society but also of a long-running resistance by lawyers themselves to any efforts to expand their numbers, introduce substantive reforms or make the law accessible to the masses. The bar exam has a 3% pass rate; law school graduates routinely try five or six times before they succeed. Much routine legal work is done by nonlawyers.
Thus, though lawyers in America have an image problem, in Japan they enjoy a kind of rarefied stature, in part because there are so few of them.
“I’ve never seen an attorney,” said Noriaki Miyakoshi, a 30-year-old employee of a government agency. “I’m not even sure I know very much about them.”
Marc Galanter, a University of Wisconsin law professor who is compiling a book of lawyer jokes, says he has searched for years for a Japanese lawyer joke without success.
The Sunflower Fund was started by Japan’s National Federation of Bar Assns. to address a growing demand for legal services in remote areas. About 68 of Japan’s 315 court districts have just one lawyer or none at all. The fund estimates that, even in the most remote areas, lawyers will make $45,000 a year. To lure them there, it guarantees them an additional $105,000 in income and as much as $35,000 for office space, computers and staff.
Among the perks, as outlined in bar association publications: Be a big deal in a small town. Enjoy great scenery. Fish. Play lots of golf.
Even so, it hasn’t been an easy sell. About 60% of Japanese lawyers are concentrated in Japan’s two main cities of Tokyo and Osaka, and few seem eager to move to the sticks.
“When we try and recruit people, most say they don’t want to go,” said Toshikazu Nagaoka, an attorney and a Sunflower Fund administrator.
Lawyer Mika Matsumoto, 26, agreed to spend two years in snowy Hokkaido, Japan’s northernmost island, in the small town of Mombetsu. Her mission: to shine a legal light where none had shown before. As far as anyone can tell, she said, Mombetsu had never had a lawyer.
Matsumoto said she heard about the Sunflower Fund and figured everyone would jump at it. “I was so surprised to find I was the only one to apply,” she said.
People in Mombetsu, meanwhile, are excited she’s coming. They’re doing everything possible to make sure she doesn’t change her mind. During a recent look-see trip, town elders spent the entire time downplaying the cold weather, treating her at the best restaurants, talking up local attractions.
Matsumoto, an avid skier, figures she’ll make more money than she would working in a city, gain valuable experience and have fun at the same time.
Back in Hamada, meanwhile, Kunihiro hasn’t had to take advantage of the bar association’s income guarantee. With his heavy workload, he’s pulled down $180,000 in his first six months.
One problem with the Sunflower system, funded by a monthly $8.40 contribution from each of Japan’s 17,000-plus attorneys, is that it takes two lawyers to argue a civil case, but many districts have only one. “We have to start somewhere,” said administrator Nagaoka.
In the past, in lieu of attorneys, Japan tended to rely on go-betweens to settle disputes. That might mean bringing in a neighbor to help resolve a petty dispute or a local dignitary for more substantive problems.
Despite the image of social harmony such a system evokes, critics say it often has resulted in powerful adversaries exploiting weaker players who were expected to suffer in silence, no matter how great the injustice.
“The system was used to protect the powerful,” said Eric Feldman, associate director of New York University’s Institute for Law and Society.
In the last decade, however, Japan’s view of legal services has changed, sociologists and legal experts say. Increasingly, mediators are ill-equipped to handle complex technical and financial disputes. More people distrust bureaucrats, politicians and corporations, so ordinary Japanese are less willing to forgo their rights or suffer indignities quietly. And the weak economy has pushed people further into debt, spurring use of bankruptcy law.
A few of the 60 cases Kunihiro has so far accepted include land disputes going back generations. More common are so-called sarakin problems, the Japanese term for the often-rapacious loan companies that sprouted like mushrooms during the 1990s to lend people money at exorbitant rates as the economy tanked.
In Hokkaido, lawyer Matsumoto says relieving hard-working locals of their debt burdens is her highest priority. With the closest lawyer more than 100 miles away, the Mombetsu area has long been “sarakin heaven,” she said. “With no one watching them, they did whatever they wanted.”
To some extent, however, the paltry number of Japanese lawyers is deceiving. Almost as many people study undergraduate law here as attend U.S. law schools. But many end up doing legal work at banks and other enterprises, never becoming full-fledged attorneys. Only attorneys can file suits and appear in court.
Robert Grondine, Tokyo-based partner with the New York law firm White & Case and president of the American Chamber of Commerce in Japan, says the barriers to lawyers reflect in part a fear of change, a desire to maintain the status quo and a bid to protect the livelihoods of a privileged few.
One unfortunate side effect has been a social dependence on organized crime for help in settling thorny disputes, Grondine says.
Recently, however, as legal demand from Japan’s own companies and citizens has exploded, politicians, bureaucrats and the bar association have become more open to reform. Under discussion now is a doubling of law school graduates, introduction of a partial jury system, faster handling of cases so they don’t take up to 20 years to resolve and making sure that judges have a legal rather than a bureaucratic background.
But reform comes slowly in Japan. In a stinging critique, attorney Shumpei Uemura criticized judges for making decisions that lacked common sense, and called for them to be “chosen from the ranks of lawyers.”
That was in 1898.
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Makiko Inoue in The Times’ Tokyo bureau contributed to this report.
