PRESIDING COURT DATE TO REINFORCE ORAL PROCEEDINGS

1. Essential Components of Oral Proceedings

A. Substantive argument about the merits of the case at issue should be made on the court date

Rather than restarting the submitted pleading documents, arguments over the substantive merits of the case at issue should be made.

B. Interactive communications should be achieved

Oral proceeding, as a speech-centered process, pursues sincere, productive communication in order to clarify the core issues and resolve disputes through interactive communication. A proceeding in which the parties present their respective assertions throughout every single point of the trial is undesirable. Likewise, a case where the presiding judge identifies the substantive merits of the case only after he acknowledges them is objectionable. Regardless of who initiates it, there should be interactive communication between the judges and the parties or even between the parties themselves to reach a shared under­standing.

By adopting this �New model,’ we can identify the substantial merits of cases more easily, increase the chances for harmonious settlement and better predict the outcome of cases.

C. We should secure pro se party's active procedural participation

As end-users of the court’s services, pro se parties should have opportunities to assert their points of view directly to a presiding judge. This is not regarded as forcing the parties to state anything disadvantageous to them nor is it viewed as infringing the lawyer’s right of representation. The court should be considerate of the parties’ needs to present their contentions, arguments, and the grounds for their feelings to be verified through the court proceedings.

The court recommends the attendance of the party himself, being present next to his attorney, and urges him to exercise his chances of testimony as his procedural rights.

D. The court proceedings should be open to the parties

Oral proceedings follow the principle of public trial where the assertions, contentions, and pieces of evidence are presented before the parties’ eyes so that the course of the case can be accurately predicted and so that parties are able to make prompt responses and adequately manage case dealings. Throughout the process, we will be able to preserve the transparency and fair­ness while eradicating public distrust and misunderstanding of the judiciary.

2. Summary of the Court Oral Proceedings

A. Types of oral proceedings

Forms of oral proceedings are classified into three types: the parties can make one-sided statements (reporting type); the parties can communicate interac­tively (interactive type); or the parties can argue over the justifications of their contentions in front of the presiding judge (argumentative type). In practice, it is necessary to use the three types to integrate their respective use, depending on: the phase of oral proceeding, the case contents, and the parties’ willingness.

Also, with regard to the leading person, we can classify oral proceedings into two types: party-dominant type and judge-dominant type. The latter is appropriate in cases where the parties are not well prepared or lack argument capability, and the former is appropriate where the parties are willing or are required to take part in the proceeding vigorously. In practice, depending on case types and the individual situation of parties, the above proceeding types can be used selectively and are interchangeable.

B. Summary of scheduling of court dates

The oral proceeding operation model suggests a planning method for court dates for which the �New model’ developed two categories: �court dates for examination of core issues’ and �court dates for examination of evidence.’

The chart below indicates each of the procedural steps for the proceedings (sectional type). The steps are designed to activate oral arguments while preventing the parties from leaving out core issues in dispute.

3. Operation of Court Dates for Examination of Core Issues

Overall proceedings are held in the following order. First, respective assertions from the parties are presented and evidentiary documents that have been submitted are examined. Then, the presiding judge draws out and defines issues in dispute. He or she can let the parties make arguments if necessary. At this point, the judge should aggressively attempt to seek a legitimate resolu­tion. When the need arises for a witness examination, the court should plan for it following the request of the parties.

A. Presenting contentions

There are two operation types for the proceedings: �party-led proceeding,’ which is proper for a case in which a party is represented by an attorney, and �judge-led proceeding,’ which is proper for a pro se case. In practice, the oper­ation is actually a mixture of these two because both aim to activate oral proceedings.

The �party-leading type’ presumes pre-review of the filed documents by the judge so that the actual proceeding can concentrate on the parties’ statements of core assertions. The presiding judge calls for this step to confirm the core points and necessary evidence by cross-examining to reveal actual causes as well as the differences of parties’ contentions.

As for a �judge-led proceeding,’ the presiding judge summarizes the case and the disputed points before he or she questions the parties’ opinions. Even in this case, the judge should lead the case by urging each party to be aggres­sive in making his or her arguments about sorted points at issue. The judge should be considerate enough to provide parties with opportunities to make active statements of the relevant facts.

B.

In previous court proceedings, judges admitted documents attached to prelim­inary pleadings or briefs as unequivocal evidence and cursorily completed examination and weighing of evidence. The parties used to present statements mentioning that they were to submit documentary evidence. In other words, the parties did not present arguments but quoted written briefs that were previ­ously submitted.

However, as an issue of proof, documentary evidence can be a disputed point in many cases and plays a very important role, especially in civil cases. Examining submitted documentary evidence requires thorough oral proceed­ing, since it is a serious and heavy decision for judges to make.

Examination of documentary evidence should unfold in this order: 1) submission of documentary evidence; 2) examination of the authenticity of the documentary evidence; 3) ruling on the evidence; 4) examination of contents of documents. If proof by evidence is requested, the judge should require the submitting party to present the object of the proof presented through documentary evidence and allow the submitting party to make an oral argument if necessary. The other party should have an opportunity to contest the authenticity of the other party’s documentary evidence.

At this stage, the judge should urge parties to make a statement of rele­vant facts and material issues, such as contesting evidentiary authenticity, in detail rather than allowing parties to make conclusory remarks like �unawareness’ or �denial.’ Unnecessary documentary evidence should be withdrawn. If the party objects to such withdrawal, he should be given a chance for sufficient argument before the court’s refusal to accept it as evidence. While in civil cases examination of documentary evidence can be completed merely by reading the documentary evidence, in criminal cases it should be done by making oral statements presenting the documentary evidence or making oral statements of its relevancy.

C. Identifying points in dispute and parties' arguments

After hearing the arguments and examining evidence, a judge discerns the factual and legal points that are relevant to the case. The judge refuses to consider arguments proven to be false or ungrounded. Such facts are uncov­ered through questioning of parties and will allow the parties to share a common understanding over the core factual and legal points at issue. It should be the judge who presents the points in dispute. Then, the judge may redefine the points based on the parties’ comments on them.

Parties’ oral arguments can proceed either before or after the judge defines the points in dispute. Even when the former helps to clear certain points, the latter can help flesh out arguments that are more persuasive as well as evidence that correctly supports the arguments.

D. Presenting judges' decision-making process

Oral proceedings are meant to be an interactive communication between the judge and the parties so that the parties directly or indirectly observe the whole decision-making process undertaken by the judge. Through the proceedings, the parties and the judge can share common understanding over the material facts and legal issues in dispute and avoid unnecessary contentions. Such procedures will encourage resolutions other than judg­ment and allow the parties some foresight into the ultimate disposition of the case, thus causing the court to become more accountable to the public. Most importantly, the judge should be cautious and refrain from doing anything to contribute to the negative image of the court (for example, allowing preju­dice to interfere with his decision-making).

E. Seeking alternative dispute resolution

Our oral proceeding model focuses on alternative dispute resolutions like reconciliation or mediation since strengthening oral proceeding in �the court dates for examination of core issues’ can create modes appropriate for such alternative dispute resolution.

It is desirable that we attempt to accomplish an alternative dispute resolu­tion at a stage prior to the planning of examination of evidence other than submitted documents. If it fails or if the fate of a case is foreseeable only after further examination of such evidence, the court can try reconciliation or medi­ation again in the closing-argument phase without giving notice of the deliv­ery date of judgment.

Pleading

Examination of evidence

Identifying issues/ adversary argument

Alternative Resolution Seeking

Plan for examining evidence

Parties Making Statement

Only case summaries and points at issue can be described and additional details could be presented in a later stage when identifying issues or adversary arguments.

Parties can apply for the examination of documentary evidence. Relevance and necessity of the examination should be presented by the requesting party and the counter-party can rebut it.

Discerning which facts are in dispute and which are not in dispute, the judge presents alleged points at issue and defines them reflecting the parties’ contentions. Adversary oral argu­ments can be done either prior to or after identifying issues.

If an atmosphere of reconciliation is matured through inter­active communications between judges and the parties, an alternative dispute resolution will be pursued.

The court adopts feasible witnesses and arranges a schedule that spares appropriate hours for witness examination.

Opportunity to make statements should be given to the parties at the last phase of the court dates for core-issues examination. Though, if necessary, judges should allow the parties to make statements even during the proceeding.

Figure 2.1 Operation of the court dates for examination of core issues (pre­trial hearings)

Figure 2.2 Operation of court dates for concentrating examination of evidence (trials)

If a judge proposes a settlement plan for the parties, he should explain the reasons or grounds for his plan. Furthermore, if he is going to make a �settle­ment proposal of mediation,’ which can have the same effect as final judg­ment if the parties fail to raise an objection within 14 days of delivery, he must see to it that the proposal does not differ much from the prospective judgment.

4. Operation of Court Dates for Concentrating Examination of Evidence

The overall process is as follows. First, previous proceedings for examination of core issues are summarized and presented so that judges and the parties share a common understanding of the core issues in dispute in order to make witness examination efficient. Second, witness examinations take place. Finally, the judge gives the parties a chance to make overall contentions. At this point, the judge should be aggressive in attempting to reach reconciliation or mediation, since the merits of the case have been fully revealed to the parties at this stage. The judge should provide the parties with opportunities for closing statements, which are supposed to encompass all aspects of the case.

The following is a detailed explanation of the necessary proceedings.

A. Presentation of the outcome of the date for preparatory pleadings (pre-trial hearings)

Examination of core issues takes place in the procedure of preparatory plead­ings (pre-trial hearings), even though the judge has the option to arrange it at trial. If the examination of core issues takes place in the preparatory pleadings (pre-trial hearings), the outcome of that procedure must be presented at trial, for the procedure can be presided over by a commissioned judge without other panel members’ participation and is usually not held in public.^[59]

This process should proceed by actual oral argument. In the past, however, it was substituted with a formal statement, indicating that presentation of the result was already made.

This presentation process varies between �parties’ statement’ and �statement about the outcome of evidence examination’ in the preparatory pleadings (pre-trial hearings). In some cases, the court can help parties gain foresight into the result of the trial just by indicating the substantive facts that are neces­sary to prove unexpectedly strong testimony from crucial witnesses.

B. Witness examination proceedings

Witness examination should be performed in a way that protects parties’ procedural rights as well as secures the finding of factual truth. Most impor­tantly, examination should focus on crucial points and should not be substi­tuted by certified documentary statements. Cross-examination should be made in a manner in which material facts can be argued in detail. The main agenda should be to reveal the relevant circumstances with which the judge can deter­mine the credibility of witnesses’ testimony. Cross-examination should not be directed to extract a confession of false testimony.

Confrontation of the witnesses, examination of parties’ testimony, and parties’ direct participation in witness impeachment should be considered positively along the course of the proceedings. Also, the judge is to convey to the parties that he is fully aware of the contents of the testimony and the atti­tudes of the witnesses.

C. Delivering opinions on the result of evidence examination

After completing the examination of witness testimony, the judge provides the parties with the opportunity to deliver their opinions on all the evidence submitted thus far. This proceeding should not be omitted, for it has a signifi­cant influence on the judge’s decision making.

The judge should instruct the parties or the witnesses to ask and give only factual testimony, not to quarrel on meritless issues, and then give the parties an opportunity to make sufficient arguments.

D. Closing argument for summing up the case

Just before the completion of argument proceedings, judges give each party the chance to make closing arguments in order to sum up their case. At this stage, judges can proceed in the same manner as a criminal trial. The parties need to do their best to make impressive closing arguments, putting together all the evidence and information from previous proceedings.

5. Pro Se Cases

A. Summary

Pro se cases represent a great number of cases and are related to the public trust of the judiciary since ordinary individuals’ experience with the judicial system comes from court proceedings. In particular, to enhance the public trust and understanding of the judiciary, it should be emphasized that pro se procedures can satisfy individuals only when the parties are given sufficient opportunities to argue and testify. The party himself or herself, plaintiff or defendant, is the appropriate person to give oral argument in that he or she, as a party concerned, knows more about the substance of the case than anyone else.

Table 2.1 2005 statistics

Both parties represented by counsel

Only one party represented by counsel

Neither party represented by counsel

Cases Rates % Cases Rates % Cases Rates %

claim case

B. Considerations according to the characteristics of pro se cases

(1) Writing of pleadings by third hand In many instances, individuals in pro se cases tend not to write pleadings themselves. Therefore, the court should induce the parties to vigorously participate in giving their own opinions orally and attempt to figure out underlying intents of their claim or defense.

(2) Lack of legal knowledge Everyday language and expressions should be used in the court proceeding, and judges should explain relevant legal principles using proper examples to the parties. This is because they might have difficulty in understanding legal issues properly due to lack of legal knowledge.

(3) Argument patterns in pro se cases The parties tend to end up exchang­ing verbal assaults and personal attacks clinging to trivial circumstantial facts. In this case, the judge should take appropriate measures taking the following into consideration: the judge can call their attentions to other material legal points to change issues; or the judge can demand parties to follow his instruc­tion of oral argument proceeding to make it orderly.

(4) Expectation and concerns about fairness As more and more emphasis is put on oral proceedings, the parties will become keen to see procedural fair­ness in court proceedings. All the while, a judge must deliberate seriously in giving fair opportunities to make arguments, showing respectful attitudes in listening, minimizing the risk of misunderstanding of the judge’s comments, and peacefully managing the proceedings.

C. Court proceeding preparations

The judge should discourage repetitive and meritless submission of documen­tary arguments and make an effort to read between the lines of pleadings even when they are fallacious. The judge should develop guidelines that are easy for parties to understand and that lay out the disputed issues and legal points.

D. Court date operations

Although judges lead the court proceedings, the parties themselves should actively take part. There may be two methods of operating the court proceed­ings: 1) the judge can deliver the case summary based on his or her previous review of the court files and then ask the parties their opinions; 2) the judge can start the oral argument process by letting the parties present their own cases. Meanwhile, the judge should be actively involved in the argument by clarifying the points in dispute.

If either one of the parties is not represented by an attorney, a judge should be careful that the pro se party is not unnecessarily distrustful and should proceed with the case on an adjusted level which each party is capable of understanding. In pro se cases, judges make use of the civil legal services and should be careful not to go too far in operating oral proceedings, considering that he or she may be entitled to proceed in forma pauperis. Using everyday language and expressions helps ordinary people to understand what judges say; explaining the legal issues using common sense or common wisdom is more comprehensible.

In a case without any direct evidence, the judge is supposed to re-examine the reasonableness of arguments presented through sufficient communication about the circumstantial facts of the case rather than urging them to prove evidence in a businesslike manner.

VI.