Japan for lawyers

A short look at Japanese social culture and what trial lawyers can learn from it

Howard Shernoff
2015 April

Last summer I was fortunate enough to spend two months with my wife and son in Japan. We rented an apartment in Tokyo and got to know the city. We also traveled around the country. Although I was not lawyering while there, it was hard not to think about the law and how much any lawyer could learn from the Land of the Rising Sun.

Consideration: a required element of the social contract

The most striking feature of Japanese society, at least to a foreign visitor, is the strict code of conduct that governs every aspect of life. Although foreigners enjoy some leeway, everyone is expected to comport himself in accordance with the rules.

In subway stations, the setting of jungle-law jostling in places like Moscow, posted signs in Tokyo remind citizens not to rush. When waiting for and boarding the trains, passengers abide by a fastidious queuing order. Lines painted on the ground help them queue single-file to the left and right, as arriving passengers exit orderly through the middle lane.

The sidewalks above likewise feature lanes to organize the flow of foot traffic. And when there aren’t any, everybody knows on which side to walk. As they do on the escalators too (always stand on the left, pass on the right). Both the subway tunnels and the sidewalks have inlaid braille paths to assist the visually impaired.

On the road, car drivers rarely have cause to sound their horns, in blissful contrast to many Asian cities where drivers toot their horns incessantly, producing that peculiar cacophonic backdrop to cities such as Chongqing, Hanoi and Chennai.

And then there is the etiquette observed in restaurants and sushi bars (where you don’t mix the wasabi into the soy sauce, rub wooden chopsticks together or pour your own saké); in traditional inns (where you must mind times and places for changing among street shoes, wooden sandals, socks only, house slippers and toilet slippers); and when visiting private homes (where you should arrive with an impeccably wrapped gift, which will not be opened until after you leave).

Underlying this code of conduct is a social contract based predominantly on consideration of others. Everyone values everyone else’s well-being and safety and shows respect for them as fellow human beings. As plaintiff attorneys, we like to think that we trade in the same principles. But do we comport ourselves with due propriety at all times with our clients, co-workers, staff, judges and mediators and their personnel, defense counsel brethren and their supporting cast? And what about our children, parents and spouses? Or the stranger on the street or in the car next to us?

I like to fit in when I travel, so I was obsessed with social protocol in Japan and how to conform as gracefully as possible. When you pay that kind of attention to yourself and your surroundings, something interesting happens. You slow down. Your gait becomes more measured because you begin to see that those who rush are less able to control themselves. You never compete to be the first through a door or in a line. It becomes a point of pride to defer to others. You begin to feel that to act otherwise is to experience deep personal shame. And you realize that if you can bring that sensation home with you, as counter-intuitive as it may seem, you stand to be a more formidable advocate.

Saving face, rather than in your face

One August day while I was in Tokyo, a well-known Japanese scientist hung himself after his recently published work on STAP cells was discredited. Although there can be complex reasons for anyone taking his life, attitudes in Japan toward dishonor make it reasonable to speculate that this erstwhile esteemed man saw no way back from the abyss of losing face within Japanese society, especially since it occurred in relation to his professional integrity.

Indeed, losing face – that is, to be subjected to a questioning of one’s abilities, dignity or prestige – is so shameful that, as I heard said, “It is simply not an option in Japan.” A consequence is that social interactions in Japan revolve around ensuring that no one loses face. For example, one rarely encounters the word “no.” As much as I wanted to hear the native pronunciation of this word, I not once had the chance. To say “no” in response to a question or request is to admit either to a lack of knowledge, which equates to losing face, or to an inability to comply with the request, which also equates to losing face.

This kind of communication can be maddening for Americans, who favor a more direct approach of getting to, as the Evidence Code famously states, the truth of the matter asserted. As Americans and attorneys, we generally seek to uncover that truth by any means legally possible, and we take it as fortuitous if our opponents blunder along the way. Their loss of face is our gain. But is this really so?

The most exemplary attorneys do not seize upon an opponent’s misstep and seek to rub his nose in it, no matter how contentious the litigation. These advocates are taking a page from the Japanese social playbook. And they end up winning most of the time because, among other reasons, they honor their role as officers of the court and feel a duty to preserve the integrity of the process. They let the facts speak. To demean another attorney is not only to divert attention from the facts but to degrade the profession.

Lessons from haiku poetry

Although hardly qualified, I endeavored while in Japan to teach my six-year-old son the art of haiku poetry. To begin, we selected a topic and used a worksheet to record a list of nouns, adjectives and verbs that the chosen topic brought to mind. Through this fundamental step we tried to grasp one of the goals of writing a haiku: to show and not tell.

The haiku writer traditionally seeks to convey moments of objective experience, or even what is true about the experience, rather than attempting to interpret it, analyze it and share subjective reactions. So in making our list of adjectives, we stayed clear of “bad” and “good” (apparently go-to adjectives of a six-year-old) and opted for “red” and “oval.” Instead of “delicious,” we chose the less judgmental “salty.” The idea is to let the reader come to her own emotional reaction rather than telling her what that reaction ought to be.

The best trial lawyers know how to show and not tell. They know how to let the facts unravel so that jurors arrive at a desired emotional destination. They know to reveal their own emotions only at closing argument (if at all), and only once they have established credibility

But the rest of us have work to do – especially in our legal writing, where most cases are won, lost or settled. Like the best trial advocates, the best legal briefs show without telling. They remain free of the author’s personal judgment. They contain no trace of sarcasm, anger or indignancy. They do not editorialize. Why tell your judge or mediator what you think? That is a non-issue. And it precludes them from feeling anything about your facts other than resentment for having to wade through your irrelevant opinions.

A haiku by the famous poet Soseki (1867-1916) goes like this:

The crow has flown away:

swaying in the evening sun,

a leafless tree.

These lovely lines illustrate another attribute of haiku poetry – the juxtaposition of two ideas, which endows the poem with deeper metaphorical meaning. The subject shift usually occurs in the last line and serves to lead the reader to yet another level of emotional involvement. In this way the poem rises above one-dimensionality yet refrains from trying to accomplish too much.

And so it should be with a good oral or written legal argument. A brief that makes the same point over and over in slightly different ways is annoying. Equally off-putting is the “laundry list” approach – laying down nine feasible arguments and hoping the judge bites on one. But give the trier of fact a cogent argument based on succinct facts along with, say, an eloquent public-policy position, and you’ve got a winner most of the time.

Before conceiving your next oral argument or crafting your next brief, try to express it – the whole thing – in a haiku. See what happens. You just might unveil the truth of the matter in all its trenchant glory.

The sound of silence

Given that the Japanese welcome the deafening sound of millions of cicadas chirping in the trees during summertime, it’s hard to believe that they adore silence. But the Japanese do love and value silence and even communicate with it.

On the most basic level, and to risk a stereotype, the Japanese are less talkative than Americans. This is partly owing to the rules of etiquette in interpersonal relations, which demand attentiveness, deference and respect. But it’s also because most Japanese adhere to the wisdom behind the saying, “When you talk you only repeat what you already know, but if you listen you may learn something.”

Compare this belief to the approach of many attorneys, who use up every second of allotted oral-argument time or fill their motions with as many words as allowed under the given page limit. We do this because silence in a room and empty space on a page make us uncomfortable. (And perhaps because we are too lazy to put in the strenuous effort required to achieve the most pithy final product possible.) We don’t trust silent moments and view pauses as mistakes. We also think that our adversaries might steal the silence and use it to their advantage.

At meetings or in private conversations in Japan, spells of silence may signal a time for respectful reflection, a transition to a new topic or an impasse. They are not awkward moments, and they are not fought over. In fact, one is loathe to break the silence and would never do so with a joke or other comic relief.

We advocates have much to gain by becoming more comfortable with silence, especially our own. Most great trial lawyers know the value of listening. They know that in order to communicate effectively – with jurors, witnesses, opposing counsel, judges, mediators – you should earn your right to speak by listening first.

Zen mind, lawyer’s mind

Of the many sects of Buddhism in Japan, Zen is among the most didactic for lawyers because of its simplicity. I also like Zen because it does not take itself as a religion per se. In the view of Zen’s greatest 20th century teacher, Shunryu Suzuki, one can be a good Christian, Jew or Muslim and still practice Zen. This is because Zen, involving no god-worship or prescribed morality, constitutes nothing to conflict with organized religions.

Like most forms of Buddhism, Zen comprises a method for alleviating human suffering. We plaintiff lawyers should be able to relate since that is our mission too. Of course, Zen goes about it in a different way – not by asserting or protecting a person’s legal rights. But Zen can aid in our quest for legal justice by making us more calm, balanced and mindful advocates.

The practice by which Zen Buddhists attain these qualities is called zazen, which means the study of oneself, generally through concentrative meditation. Yet, in the great Buddhist paradox that gives rise to some very good humor, one achieves calmness, balance and mindfulness by emptying the mind completely and ceasing the effort to attain anything. This is called reverting to our original mind, or “beginner’s mind.”

Suzuki famously said: “In the beginner’s mind there are many possibilities; in the expert’s mind there are few.” He meant that if your mind is empty, it remains ready for and open to anything. If it is cluttered with thoughts and goals and a mental outline of all the points you must make to the judge, your mind will be closed and not very nimble. This goes back to being a good listener. Not surprisingly, the best-listening lawyers are the ones who seem the most humble and self-effacing. In their silence, in their listening, they are inhabiting beginners’ minds.

Any time our mind is uncluttered and open, we are in zazen. We don’t need to be seated in the lotus position intoning a mantra. We can practice zazen while taking a deposition by letting go of our pre-conceived notions of the testimony we need to “get” from the witness. When we let go of that notion, and if we are well prepared, chances are that we receive even better testimony. When the mind is open, the possibilities are many.

And what about our own suffering as lawyers? When a colleague tells me that he is stressed, what he means, in the Zen understanding of things, is that he suffers. And he suffers because he is attached to the pursuit of an expected result and feels that there is a lot riding on achieving it. In that struggle, he loses himself. And contrary to popular belief, Zen is not about losing oneself. It is about studying oneself and making oneself right.

The Hollywood-movie portrayal of the dogged lawyer who neglects himself and his loved ones for his client’s cause makes for good character drama but in real life results in poor advocacy. An unsuffering, unattached and well- balanced lawyer makes for a truly effective advocate

Suzuki asks: “Which is more important: to make a million dollars, or to enjoy your life in your effort, little by little, even though it may be impossible to make that million; to be successful, or find some meaning in your effort to be successful?” He goes on to state that if you can answer to these quandaries, you have found “the true treasure of life.” And, I would add, you may have unearthed the richness of practicing law.

Howard Shernoff Howard Shernoff

Howard Shernoff is a legal writer and litigator at large. He can be reached at howard@shernoff.law.

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