Note

Attitude, Evaluation, and DecisionMaking by Civil Litigants
and Their Lawyers
Findings from the Nationwide Surveys(part 2 of 2)

Daniel FOOTE, Mikio KAWAI,
Akira MORIYA, Shusuke KAKIUCHI,
Yuriko KAMINAGA, Yasuhiro WADA,
Tomohiko MAEDA, Shozo OTA( 29 )(名城'09)

58−4− 168

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

Gender Analysis of the Nationwide
Civil Case File Research (2005)

研究ノート

1. Introduction

This paper argues that a gender perspective on civil justice, including the gender statistics of the civil docket, is necessary to improve women's use of courts

Yuriko KAMINAGA

and thereby improve their status in society in Japan. The argument is grounded
on a set of statistical data derived from the Nationwide Civil Case File Research,
Abstract

undertaken in 2005 by the Civil Litigation Behavior Research Group, Group C ofThis paper tries to analyze the Japanese use of court from a gender perspec-

the Nationwide Survey on Civil Disputes (Japan) research project, "Disputetive. For this purpose, the data collected in the Nationwide Civil Case File

Resolution and Civil Justice in a Legalizing Society." The data was compiled

Research (2005) is used contrasting male and female cases. Some findings of thefrom the court files for 1132 randomly selected civil cases, from courts through-analysis are: (1) males use the court as plaintiffs twice as often as females, andout Japan. The current absence of gender consciousness in civil proceedings, asappear in the court as defendants three times as often as females; (2) althoughwell as in the Japanese legal system in general, could induce women not only tothe types of lawsuits and the amount of damages claimed are similar, one typeuse civil lawsuits less often than men to solve their problems but also to feel es-of case, the suit for adultery, is brought only by female plaintiffs: (3) female

tranged from the law and justice.

cases tend to end in in-court settlement more often than male cases; (4) female

The Supreme Court of Japan, as in most other countries, does not take into

plaintiffs tend to be represented by one lawyer instead of many, meaning a

account the gender of plaintiffs and defendants in civil cases, in contrast to thelarger law firm. These findings suggest that male and female behavior becomescriminal justice system where gender of defendants seems inevitably salient forsimilar on the structural level where the lawyers' decisions play a large part in-purposes of sentencing and rehabilitation. Gender is presumed irrelevant in civil

volved with legal cultural factors, such as what kind of claim is considered suit-proceedings, because all citizens are treated as equal under the law. Some find-able to litigate and what size damage award it is appropriate to claim. But someings in our survey suggest that this presumption could be mistaken and that

peculiarities to the female litigant are found, suggesting that gender statistics

gender should be taken into consideration in both civil and criminal proceedings.

and further gender analysis of female access to the courts should be conducted.

The reason that civil proceedings do not take gender into consideration derives from the most fundamental principle of the modern civil justice system,

Kay words: civil justice, gender, plaintiff, defendant, legal representation

where the initiative for major actions such as filing lawsuits, presenting evidence, and concluding the lawsuit by accepting an in-court settlement or withdrawing the claim or counterclaim belong to the citizen-litigant, not the courts.
The parties in civil proceedings are presumed equal in these actions, as the general concept "citizen" is applied to everyone regardless of gender in the modern

58−4−167 (名城 '09)

( 30 )( 31 )(名城'09)

58−4− 166

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート
Table 1

civil justice system.

Category of Litigants 1: Plaintiff
case

However, as feminist legal theorists have argued, the law and the legal system%

Effective %

Male

362

32.0

32.1

are historically and philosophically male. In every country, until very recently,

Female

184

16.3

16.3

women were not allowed to vote and were not considered to be legal subjects.

Joint

77

6.8

6.8

Corporate

504

44.6

44.7

1127

99.6

100.0

4

0.4

1131

100.0

Even after enfranchisement and the recognition of women's legal personality,

Total
Omitted Unknown

women remain distanced from law for a variety of complex reasons.

Total

This is particularly true in Japan, where the enfranchisement of women was
as late as 1945 and the legal culture is still homosocially masculine. The Gender

Table 2Equality Law, the basic legislation designed to overcome social and factual gen-

Category of Litigants 1: Defendantcase

der inequality, was not enacted until 1999. Besides the societal inequality re-%

Effective %

Male

576

50.9

51.3

garding housework and care work for children, the sick and the elderly, and theFemale

156

13.8

13.9

gender-unequal distributions of power in public life, Japanese women are also

Joint

154

13.6

13.7

Corporate

236

20.9

21.0

1122

99.2

100.0

not yet equipped to use law on their own behalf.

Total
Omitted Unknown

In this context, it is important to examine whether women in Japan enjoy theTotalprivilege presumed to be given to all citizens to use the courts to solve disputes

9

0.8

1131

100.0

in social life. To further this goal, this paper analyzes court records using gender as an independent variable.

meaning beauty, for a girl. Aside from these gender suffixes, there are typicalnames for boys, such as "Masayuki", "Seigo", and "Kahei", and for girls "Misato"

2. Litigants in the 2004 Court Recordand "Hana". These customs persist in Japan, even if recently there has been aloosening and increase in non-traditional and gender-neutral names. ThisThe court records from the 51 district courts throughout Japan establish thatmethod could not identify as male or female four of the individual plaintiffs andwomen are currently less involved in civil suits than men are. Table 1 and Table

twelve of the individual defendants in this data. Individual litigants whose gen-

2 present gendered data on litigants, plaintiffs and defendants, respectively. For

der could not be identified from their first names are categorized as "unknown"

analytical purposes, all the litigants in our sample court cases are divided intoand eliminated from the analysis after this.

four categories: male, female, joint, and corporate. Litigants were categorized

Women involved in the lawsuits as joint litigants with their husbands or

as male or female based on their first names. As in any culture, there are certain

other men are assigned into a distinct category, "Joint", and excluded from thecustomary rules for naming a baby according to its sex. For example, the suffix

category "Female," because their decision-making, legal as well as in any otherof "-ko" is used to show the baby is a girl, compared with the suffix "-o" for asense, cannot be differentiated from that of the male partner (s). Joint cases

boy. Other gendered suffixes include "-taro" for the first-born boy and "-mi",amount to 77 and 6.8% of the total. In the case of joint litigants, the cases are

58−4−165 (名城 '09)

( 32 )( 33 )(名城'09)

58−4− 164

研究ノート

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
categorized as male or female if all the joint litigants are the same gender.

Males sued males in 140 cases, 12.5% of the total. The least frequent pattern is

Otherwise they are categorized as "joint" since we cannot differentiate their de-male plaintiffs suing female defendants; 31 cases and 2.8% of the total. Females

cision-making from that of their partners.

sued males in 70 cases, which comprise 6.3% of all litigation. Cases where bothIn our sample, individuals (male, female and joint combined) use the courts

parties are females are minimal: 43 or 3.8% of the total.

slightly more than the corporations: 623 and 504 respectively. But the actual

Except as joint plaintiffs, 6.9% of the total, our data show that female appear-

number of corporate plaintiffs is 29 more, because the male category includes 26

ance in the court is limited, 16.4% of the plaintiffs and 13.9% of the defendants.

cases with corporate participants owned by males and the female category in3. Gender Difference among Plaintiffs

cludes 3 cases with corporate participants owned by females.
As Tables 1 and 2 show, male litigants outnumber female litigants 2:1 asplaintiffs and 3:1 as defendants. Females were plaintiffs in 184 cases comparedThis section looks more closely at the gender of plaintiffs from various an-

to 362 cases with male plaintiffs, and as defendants 156 cases involved females

gles. Male data is compared with female data to see if there is any gender differ-and 576 involved males in the district courts in the year of 2004.

ence in the use of civil court in terms of number of defendants, types of cases,

The group most frequently initiating lawsuits is corporations, with 44.5% of
all cases in the sample brought by corporate plaintiffs. In contrast, male individuals are the group most likely to be sued, i.e., 50.9%.

amounts of claim, and the result.


Number of Defendants Named in Suit

Table 3 is the cross tabulation of plaintiff and defendant. The most frequent

The individual plaintiff sued a single individual defendant in 249 cases, two de-pattern of civil litigation is that of corporate plaintiff against male defendantfendants in 57 cases, and three or more defendants in 38 cases. Strikingly, fe-(s). Corporate plaintiff sued corporate defendant in only 2 cases in our sample1.

male plaintiffs sued a single defendant in far more cases than male plaintiffs,
58.2% as compared to 39.2%. Female plaintiffs also sued corporate defendants far

Table 3less frequently than male plaintiffs, 27.2% as compared to 42%. (Table 4)

Cross Tabulation of Litigants
Defendant

Male
Plaintiff

Male%
FemaleFemaleJoint

Corporate

Total

140

31

37

152

360

12.5

2.8

3.3

13.6

32.2

70

43

21

50

184

6.3

3.8

1.9

4.5

16.4

28

8

9

32

77

%

2.5

0.7

0.8

2.9

6.9

Corporate

335

74

87

2

498

%

29.9

6.6

7.8

0.2

44.5

573

156

154

236

1119

51.2

13.9

13.8

21.1

100.0

%
Joint

Total
%

58−4−163 (名城 '09)

( 34 )

Table 4

Cross Table of Gender of Plaintiff and Number of Defendants
Individual
1

Male
%
Female%Total%( 35 )

2

3 or more

Corporate

Total

142

41

27

152

362

39.2

11.3

7.5

42.0

100.0

107

16

11

50

184

58.2

8.7

6.0

27.2

100.0

249

57

38

202

546

45.6

10.4

7.0

37.0

100.0

(名城 '09)58−4− 162

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート
Table 6

The Type of Plaintiff's Cases
We categorized the type of the case into 21 types according to the substanceRanking

Male
Type of Cases

1

Torts (excl. traffic
accidents)

17.1

2

Eviction fromland or building

14.6

3

Other

14.4

4

Loan-related

11.1

of the case, adding seven categories to the original 15 categories made by the
court clerk when the case were brought to the court2 . Table 5 shows the casenumbers in each type by gender.
The ranking of frequency by types of cases is shown in the following table 6.
There are some differences of frequency in the type of claim by gender.
The most frequent type of the litigation for both male and female plaintiffs is"torts excluding traffic accidents". However, there is a significant gender differ-

Ranking and Rate of Types of Cases

56% of 362cases

Unjust enrichment(incl. overpayment)

9.7

Traffic accidents

9.4

FemaleType of Cases% of 184cases

Torts (excl. traffic
accidents)

22.8

Eviction fromland or building

12.5

Other

12.5

Traffic accidents

12.0

Loan-related

9.8

Unjust enrichment(incl. overpayment)

7.1

Real property title(registration-related)

7.1

ence, with these making up 17.1% of the cases brought by males and 22.8% of thecases brought by females.
Table 5

Type of the caseType of caseA reason for this prominence of torts brought by female plaintiffs appears
FemaleTotal

Loan-related

40

18

58

Surety-related

4

2

6

claims against the woman with whom the plaintiff's husband committed adul-

Purchase money-related

5

3

8

tery. Only one case was brought by a male plaintiff against his wife's adultery

Credit-related [incl. credit card-related claims]

5

3

8

Contract-related damages

19

9

28

Subcontract-related

11

2

13

Traffic accidents

34

22

56

Torts (excl. traffic accidents)

62

42

104

Rent-related

9

4

13

Ownership of land or building

5

2

7

Eviction from land or building

53

23

76

Real property title registration-related

25

13

38

"other" category, even after our data-cleaning and reclassification. The "other"

Divorce-related

1

2

3

category is in the third rank for male plaintiffs, but the rate is higher than forInheritance-related

8

10

18

Other

52

23

75

Unjust enrichment(incl. overpayment of interest on consumer loans)

35

13

48

The traffic accident ranks third for female plaintiff, but this category ranks

Deposit

63

9sixth for male with 3.1 points difference. The fourth frequent claim is "loan-

Confirmation of non-existence of obligation

19

6

25

related" for both male and female but male is 2.1 points higher. The fifth rank

Labor

16

4

20

Promissory note

4

1

5

is "unjust enrichment, including overpayment", for both male and female. Again

Determination of boundary

2

0

2

the male rate is 2.6 points higher than female. For female plaintiffs, "real58−4−161 (名城 '09)

Malequite gender specific. At least 14 cases brought by female plaintiffs are tort

( 36 )

partner3. The adultery cases push the female rate of torts 5.7 points higher thanthe male rate.
The second most frequent claim for both male and female plaintiffs is "eviction from land or building", but "other" is in the same rank with "eviction fromland or building" for female plaintiffs. Miscellaneous claims are found in thisfemale plaintiffs.

( 37 )(名城'09)

58−4− 160

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
property title, registration-related", is in the same rate and rank with the "un-研究ノート
difference is found between male and female cases (Table 7).

just enrichment". The male rank of "real property title, registration-related"

The most frequent range of amount is between 1 million and 5 million yen fordoes not show on this ranking list but the rate is almost the same (approxi-

both male and female plaintiffs. The largest amount is 1,590,688,000 yen for amately 7%) with female. (See Table 6)

male, and 500,000,000 yen for a female.

Thus, the type of claim is not gender specific, except adultery cases in the"torts" category. Here the structural factors of civil justice seem more salient

Results in the First Instancethan gender. The decision of what kind of claim is to be brought to the court andIn-court settlement is the most likely result in civil litigation in Japan. In ouralso what kind of claim is possible to win through litigation is framed by prece-sample, almost two fifth of all cases ended with in-court settlements. But thedents and behaviors of the court. Since most of the plaintiffs are represented bypercentage is 4.9 points higher for female than male litigants.

counsel (Table 11), legal and technical information and advice from the lawyers
would have affected the plaintiffs' use of the court.


Male plaintiffs withdraw more than female: 17.4% and 14.7% respectively.
Cases brought by males are more often dismissed on the merits with prejudicethan those brought by females: 12.5% and 5.4%. At the same time, cases brought

Amount in Dispute by Plaintiff's Genderby females are partially affirmed by the court more than those brought by
A similar framing seems to occur regarding the amount in dispute. Not much
Table 7

Amount in Dispute (￥)Male0Table 8

Male

2

4

%

0.6

1.1

0.7

30

17

47

%

8.3

9.2

8.6

36

15

51

%

9.9

8.2

9.3

165

86

251

%

45.6

46.7

46

50

22

72

%

13.8

12

13.2

62

33

95

%

17.1

17.9

17.4

12

6

18

%

3.3

3.3

3.3

5

3

8

%

1.4

1.6

1.5

362

184

546

%

100.0

100.0

100.0

〜1million〜5million〜10million〜50million〜100million
More
Total

Results in the First Instance: Plaintiff

Total

2

〜500,00058−4−159 (名城 '09)

FemaleAffirmation of claim

92

%

17.4

15.8

16.8

37

29

66

%

10.2

15.8

12.1

46

10

56

%

12.7

5.4

10.2

63

27

90

%

17.4

14.7

16.5

5

3

8

%

1.4

1.6

1.5

133

82

215

%

36.7

44.6

39.4

7

1

8

%

1.9

0.5

1.5

8

3

11

%

2.2

1.6

2.0

362

184

546

%

100.0

100.0

100.0

Dismissal with
Withdrawal
Acknowledgment
In-court settlement
Multiple results
Other
Total

( 38 )( 39 )

Total

29

Partial affirmation of claim

prejudice on the merits

Female

63

(名城

'09)

58−4− 158

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート
Table 9males: 15.8% and 10.2%, though the affirmation rate is 1.6% less. It seems that1

women are more reluctant to sue or more careful in grounding their claim beMale

fore they sue.



2

3

4

5

Total

329

19

6

6

2

362

%

90.9

5.2

1.7

1.7

0.6

100.0

165

12

4

3

0

184

%

89.7

6.5

2.2

1.6

0.0

100.0

494

31

10

9

2

546

%

90.5

5.7

1.8

1.6

0.4

100.0

Female4. Plaintiffs and Gender

Number of individuals in the party

Total

Structure of litigating party
Table 10As Table 1 showed earlier, the percentage of female plaintiffs is half that of

Number of Corporate Partners

0male plaintiffs. Graph 1 illustrates the percentage of each category of plaintiffs.
Male

Here we have to pay attention to the limitations of our research. Our data

males. Because of the shift of judicial jurisdiction over matrimonial cases4, we

3 or more

Total

5

1

362

%

92.8

5.5

1.4

0.3

100.0

181

3

0

0

184

%

98.4

1.6

0.0

0.0

100.0

517

23

5

1

546

%

94.7

4.2

0.9

0.2

100.0

Total

have chosen to exclude "divorce-related" and "inheritance-related" from our sam-

2
20

Femaledoes not include matrimonial cases, which females litigate far more often than1336

ple in our classification of the type of the cases listed in Table 5 and Table 14.
The few cases of such types that appear in these tables are only the residue ofbut some joint cases involve more than two people whose relationship cannot be

old cases before the jurisdiction shift took place.

identified from the court record5.

The category "Joint" is used for the cases that include both male and female

Table 9 involves the number of individuals in the litigating party. Most of thelitigants, as defined on p.5. The most frequent combination is husband and wife,

plaintiffs litigate alone: 90.9% for males and 89.7% for females. The cases withtwo persons in the party make up 5.2% of the male cases and 6.5% of the female
cases. The maximum number of individual in any party is five for male cases.

㪌㪇㪅㪇
㪋㪋㪅㪍

㪋㪌㪅㪇

As mentioned earlier (p.7), some cases also have corporate partners: 7.2% ofPercent of Cases

㪋㪇㪅㪇
㪊㪌㪅㪇

the male cases and only 1.6% of the female cases. (Table 10) The corporate part㪊㪉㪅㪇ners that joined in female cases are female owned.

㪊㪇㪅㪇
㪉㪌㪅㪇

Therefore, if we take note that most of the corporate litigants are owned and

㪉㪇㪅㪇

㪈㪍㪅㪊

represented by males, males use the court more than three quarters of the total.

㪈㪌㪅㪇
㪈㪇㪅㪇

㪍㪅㪏



㪌㪅㪇
㪇㪅㪇

㫄㪸㫃㪼㩷㩷㩷㩷

㪽㪼㫄㪸㫃㪼㩷㩷

Graph 158−4−157 (名城 '09)㫁㫆㫀㫅㫋㩷㩷㩷

Representation
Individual plaintiffs retain lawyers more than corporate plaintiffs. Almost a㪺㫆㫇㫆㫉㪸㫋㪼

Categorized Plaintiff

quarter of the corporate cases are self-represented, likely relying on an attorney( 40 )( 41 )(名城'09)

58−4− 156

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
Table 11

研究ノート

Number of Lawyers of Plaintiff

Table 12

Number of Female Lawyers by Plaintiff's Gender

Number of Lawyers
0Plaintiff

Male

1

2

Number of Female Lawyers

3/more

Total

69

163

76

54

362

%

19.1%

45.0%

21.0%

14.9%

100.0%

23

104

31

26

184

%

12.5%

56.5%

16.8%

14.1%

100.0%

2

33

23

19

77

%

2.6%

42.9%

29.9%

24.7%

100.0%

FemaleJoint
Corporate

120

170

72

142

504

%

23.8%

33.7%

14.3%

28.2%

100.0%

214

470

202

241

1127

%

19.0%

41.7%

17.9%

21.4%

100.0%

Total.00
Plaintiff

Male

1.00

2.00

3.00

Total

309

39

8

6

362

%

85.4%

10.8%

2.2%

1.7%

100.0%

160

20

4

0

184

%

87.0%

10.9%

2.2%

.0%

100.0%

469

59

12

6

546

%

85.9%

10.8%

2.2%

1.1%

100.0%

FemaleTotal

men do, but the majority of both women and men would prefer to retain malelawyers.
In this context two problems emerge as to the low rate of retaining female

from their legal department. The next highest rate of self-representation islawyers: (1) the access to female lawyers and (2) the people's confidence in a fe-found among male plaintiffs (19.1%). Only 12.5% of female plaintiffs were self-

male lawyer's winning the case, given the male culture of justice and dominancerepresented.

in society.

Two or more lawyers are involved in 130 male cases (35.9% of the male cases)

Female lawyers in Japan number only a little more than 3000 in 2004, andand 57 female cases (30.9% of the female cases). The maximum number of law-they tend to be younger and to practice in the central part of Tokyo and otheryers found, in a male case is 13 and in a female case 10 lawyers. The relationshiplarge cities. As in other countries, female attorneys are likely to be assigned byamong these lawyers is not identifiable in the court record; possibilities include

their firm or chosen by the client to represent matrimonial cases, which are ex-a listing of all members in the same firm nominally in some cases or the forma-

cluded in our research as explained above. The second problem of people's confi-

tion of a special legal team, either within or across the firms.

dence toward female lawyer's possibility of winning is another question to be

One lawyer is retained in 41.7% of the total. Female plaintiffs tend to be represented by one lawyer (56.5%) at the highest ratio of any category of plaintiff.

studied in terms of both Japanese society in general and legal society in particular.

The percentage is 11.5 points higher than male plaintiffs.


5. Female Defendants

Involvement of Female Lawyers
The court record shows that it is not likely that women retain female lawyers

Rate of Female Defendant Cases

any more often than men do (Table 12). In 87.0% of the female cases and 85.4%

Women also appear in court as defendants. But women's possibility of beingof the male cases, no female lawyer was involved. Yasuhiro Wada describes insued is minimal: 13.8% of the total litigation (Graph 2). This rate is even lower

the article in this volume that women in general accept female lawyer more than

than their possibility of suing as plaintiffs as shown in Graph 1: 16% of the

58−4−155 (名城 '09)

( 42 )( 43 )(名城'09)

58−4− 154

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート
Table 13㪍㪇㪅㪇

Defendant's Gender and Categories of Plaintiff
Plaintiff㪌㪇㪅㪐Percent of Cases

㪌㪇㪅㪇

Male
Defendant

FemaleJoint

Corporate

140

70

28

335

573

%

24.4

12.2

4.9

58.5

100.0

31

43

8

74

156

%

19.9

27.6

5.1

47.4

100.0

171

113

36

409

729

%

23.5

15.5

4.9

56.1

100.0

Male

㪋㪇㪅㪇

Female

㪊㪇㪅㪇
㪉㪇㪅㪐

Total

㪉㪇㪅㪇
㪈㪊㪅㪏

㪈㪊㪅㪍

㪽㪼㫄㪸㫃㪼㩷㩷

㫁㫆㫀㫅㫋㩷㩷㩷

Total

㪈㪇㪅㪇

sued by females. As noted earlier in p.9, 14 out of 43 female v. female cases are㪇㪅㪇㫄㪸㫃㪼㩷㩷㩷㩷

Graph 2㪺㫆㫇㫆㫉㪸㫋㪼

tort damage claims for adultery. Females were less likely to be sued than males

Gender of Defendants

by male plaintiffs: 19.9% and 24.4% respectively.

total. Compared to the number of male defendants, female defendants make upbarely more than a quarter.

Types of Cases
This section looks at types of defendant cases in terms of categorized claim.

This phenomenon reminds us of the fact that women commit crime and be-

The most frequent type is "eviction from land or building" for both male and fe-come defendants in the criminal justice system less often than men. Women

male defendant. As Mikio Kawai's article in the previous issue of Meijo Hogaku

have fewer encounters with the law as law-violators. There could be various ex-

explains, the year of our sample cases include so many eviction cases because

planations: women have less opportunity to commit an antisocial act; women

government-related urban development corporations brought many suits thisare more peace loving or adverse to conflicts; Women have a more obedient atti-

year.

tude toward law and other authority and so forth. Our findings would invite inquiry into the root causes of this tendency of women to be law-abiding.


But rankings from second on are different between male and female. "Creditrelated [incl. credit card-related claims]" is the second largest category of casefor male defendants, but it is the fourth largest for female defendants.

Defendant's Gender and Categories of Plaintiffs"Torts(excluding traffic accidents)" ranks second for female defendants for the
Table 13 shows the categories of plaintiffs who brought suit against male andreason stated above. "Traffic accidents" ranks third for female defendants, but

female defendants. Corporate plaintiffs use the court against individual defen-

it ranks fifth for male defendants. For female defendants, "Credit-related [incl.

dants most: 58.5% of the male defendants and 47.4% of the female defendants

credit card-related claims]" ranks forth with "Other".

were sued by corporate bodies.
The next most frequent type of litigation is against the same gender: 24.4% of
the male defendants were sued by males; 27.6% of the female defendants were58−4−153 (名城 '09)

( 44 )( 45 )(名城'09)

58−4− 152

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
Table 14

研究ノート

Types of Defendant Cases by Gender

Types of the case

Table 15

Male

Rank

FemaleRank

Loan-related

76

3

11

4

Surety-related

41

Purchase money-related

14

Credit-related [incl. credit card-related claims]

80

Contract-related damages

14

2

Subcontract-related

101

Traffic accidents

50

5

13

3

Torts (excl. traffic accidents)

67

4

27

2

Rent-related

26

4

Ownership of land or building

6

2

Eviction from land or building

181

Real property title registration-related

16

Divorce-related

12

Inheritance-related

6

10

Other

48

Male
0

6
5
2

1

11

49

6

11

4

2

Deposit1

2

Confirmation of non-existence of obligation

17

2

Labor

4

1

Promissory note

61

Determination of boundary

3

2

4

%

0.7

0.0

0.5

43

17

60

%

7.5

10.9

8.2

62

15

77

%

10.8

9.6

10.5

280

87

367

%

48.6

55.8

50.1

71

13

84

%

12.3

8.3

11.5

77

19

96

%

13.4

12.2

13.1

24

3

27

%

4.2

1.9

3.7

5

2

17

%

2.6

1.3

2.3

76

156

732

%

100.0

100.0

100.0

〜5million〜10million〜50million〜100million

4

more
Total



Total

0

〜1million

1

Female4〜500,000
4

5Unjust enrichment (incl. overpayment of intereston consumer loans)Amount in dispute (￥)Representation of Defendants
Compared to males, female defendants retain lawyers at a higher rate, al-though self-representation is not uncommon. Self-representation by male defenAmount in Dispute in Defendant Cases
dants is almost 10 % more than by female defendants: 64.2% versus 54.5%. The
The amount in dispute is slightly difference between cases against male de-other feature of female defendants is that they are more likely to be represented

fendants and those against female defendants, but it is not statistically signifi-

by just one lawyer instead of multiple lawyers, i.e., more than a quarter of thecant. The cases against female defendants tend to be for smaller amounts: every

female cases.

amount-category over 5 million has a lower female than male percentage and

It is found, if we compare Table 16 to Table 12, that the overall rate of lawyer

the category "〜5 million" yen (from ￥1,000,001 to ￥5,000,000) includes 7.2

representation in defendant cases is far lower than plaintiff cases. The reasons

points more female cases than Male.

cannot be determined from this research alone but should be studied. They could
include factors such as trial in absentia; repeat player: and corporate litigation
as routine work, as well as the lack of legal and financial resources on the partof defendants.

58−4−151 (名城 '09)

( 46 )( 47 )(名城'09)

58−4− 150

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
Table 16

Number of Lawyers by Gender of Defendants

examinations or more thorough investigation of systematic disparities in court

Number of Lawyers

Defendant

0

Male

1

2

use. Our research is one of such empirical examination, and more than that,
3/more

Total

370

108

40

58

576

64.2%

18.8%

6.9%

10.1%

100.0%

85

41

17

13

156

%

54.5%

26.3%

10.9%

8.3%

100.0%

455

149

57

71

732

%

62.2%

20.4%

7.8%

9.7%

100.0%%
Female
Total

研究ノート

based on the following findings it suggests the need for further gender conscious analysis.
Firstly, as to the rate of bringing a case to the court, the gender difference ismarked: (1) Fewer women are involved in civil suits than men: approximately
1:2 for plaintiffs and 1:3 for defendants; (2) Females tend to sue a single individual instead of many; (3) Females sue a corporate body less often than males do;

Table 17

Number of Female Lawyers by Gender of Defendants(4) The male use of courts is more than double of the number of the nominally

Number of Lawyers

Defendant012

individual cases, because in Japan most of the corporate bodies are owned and3/more

Total

526

44

4

2

576

represented by males. Moreover, our research excluded matrimonial cases be-

91.3%

7.6%

.7%

.3%

100.0%

cause of jurisdictional change of the court system in 2004. Thus, female use of

140

14

2

0

156

%

89.7%

9.0%

1.3%

.0%

100.0%

666

58

6

2

732

%

91.0%

7.9%

.8%

.3%

100.0%

Male%
FemaleTotal

the court as a whole is yet to be studied, as family law is the most gendered areain the use of the court.
Secondly, interesting findings on the kind of case brought to the court include: (1) There are some gender differences in the type of claim. "Traffic acci-

The rate at which defendants retain female lawyers (Table 17) is not muchdent" and "real property title, registration-related" rank higher for female

different from the rate at which plaintiffs did show in Table 13. The access to fe-plaintiffs than male; (2) Though "torts" are the most frequent claim for bothmale lawyers and society's confidence in them seem again here to be the major

men and women, a specific kind of torts, i.e., female's compensation claim

problems.

against her husband's adultery partner is outstanding.
Thirdly, as to the result of the litigation, females seem to be more cautious in

5. Conclusion

choosing to sue and a little more eager to negotiate: (1) In-court settlement is
the most favored result for both male and female plaintiffs, but the percentage

In this paper, I tried to provide some evidence to support my argument thatis slightly higher for females; (2) Even though the affirmation rate is slightly

gender should be taken into consideration in the construction and operation oflower for females, their rate of partial affirmation is higher and lower in thecivil procedure, based on the findings of our research on court record. We shouldrate of withdrawal and dismissal.

reexamine the presumption that since men and women are equals as citizens,

When being sued, adding to the fact that female is the smallest category of

they should be left alone to make their own decisions regarding the use of courts

defendants, women show some specificity: (1) In the ranking of defendant's

to solve social conflicts, and it is not necessary to make any empiricalcases, for example, the category of "Credit-related [incl. credit card-related

58−4−149 (名城 '09)

( 48 )( 49 )(名城'09)

58−4− 148

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート

claims] " is the second largest category for male, but it is the fourth rank for fe-

How Female Views on Litigation:
Preliminary Ten Findings

male; (2) The amount of dispute in defendant's cases is lower for female thanmale; (3) Male defendants self-represent more often than female defendants; (4)Female defendant tends to be represented by one lawyer, more often than male.
To conclude, women seem not only to take distance from the court but also

Yasuhiro WADA

to have specific needs. They seem more reluctance than men to bring their problems to the court, because they feel their action more restricted living in the webof relationship in society. But when they come to the court, they seem to look

【Abstract】

for an authoritative decision-making by the court to solve the problem their so-This paper summarizes the feelings and tendencies of females regarding civil

cial powerlessness and privateness of their life hinder to resolve it by them-litigation. The data was collected in a survey conducted of the general public ofselves. They ask the court as a public agent to punish on their behalf the breaker

Japan in 2007. Each respondent was asked about civil lawsuit, and the findingsof their peace.

discussed herein relate to the following : women's expectations of litigation,

A gender statistics, as well as case studies, might help to figure out what

their actual court experiences, their images and impressions of litigation, the re-women suffer and struggle against in society. It will also specify the women's

lationship with representing lawyers and lawsuit, and their expectations ofneeds for civil justice.

their representing lawyers and presiding judges. In conclusion, the data suggests that women are more inclined than men are to consider a lawsuit as serious and burdensome.

[Notes]１ Other: two cases that lack record on defendant by mistake. Basically, the cases where
both parties are corporate have been excluded from our sample, as we focus on indi-【Key words】gender, litigation, survey, lawyers, court, lawsuit

vidual decision-making.
２

The original 15 types are: Loan-related, Surety-related, Purchase money-related,
Credit-related[incl.

creditcard-related

claims],Contract-related

damages,Ⅰ. Introduction

Subcontract-related, Traffic accidents, Torts (excl. traffic accidents), Rent-related,
Ownership of land or building, Real property title registration-related, Divorce-(n=1000) were asked about litigation. The goal of the survey was to compare therelated, Inheritance-related, and Other.
３ In this male case, the plaintiff sued the male defendant claiming 3 million yen, ended
with withdrawing. Both litigants were self-represented.
４

A survey was conducted in 2007, where members of the general public

responses of the general public with the responses in a related survey of respondents who were litigants. See another paper by the same author, "What Do They

Matrimonial cases were moved into the jurisdiction of family courts by statutory

Expect When Ordinary People Think About Civil Litigation?: A Survey

change in 2004.
５

Analysis", in Human Sciences : Bulletin of Osaka Prefecture University, Vol. 3

In the few remained inheritance cases, the relationship is obvious, though.

(2008), overviewing the above survey and presenting a quick summary of the
58−4−147 (名城 '09)

( 50 )( 51 )(名城'09)

58−4− 146

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
basic points of the research. This survey provides the basis for our set of researches, on which briefly mentioned in the concluding notes at the end of thispaper.

研究ノート

Females desire to engage in litigation no less than males.
Table A-2 illustrates the responses of men and women when asked: Do you

Naturally, regarding their perceptions and expectations with respect to vari-want to use civil lawsuit when you face significant problems? If one simply ex-

ous aspects of litigation, respondents who have experienced litigation may dif-amines the "yes" and "no" answers, the men seem to prefer to engage in litiga-

fer from the general public. This paper explores the basic research from thetion slightly more. However, this gender distinction is less significant when one

gender perspective and presents generalized statements regarding female's

considers the other three categories, which are "more likely yes", "unsure", andviews of lawsuits, lawyers and judges. We discuss them in order with some basic"more likely no".

figures.

Table A-3 shows the same cross-tabulation but further distinguishes the respondents into groups of those who have and have not had prior civil lawsuit ex-

Ⅱ. Findings

perience. Among those who have prior experience, the "unsure" responses
decreased by ten (10) percentage points (from 33.4% to 23.5%). The percentage

Court experience of males exceeds that of females.
of men and women who responded "yes" increased by several points (from 24.0%
As shown in Table A-1 below, the number of individuals who have experienced

to 27.8% for men, and from 20.3％ to 26.7％ for women). Thus the data seems tocivil lawsuit is very limited. Only thirty-eight men among 475 (8.0%) and seven-show no distinction between the number of men and women who desired to en-teen of 515 women (3.3%) reported litigation experience. The statistical signifi-

gage in litigation.

cance with which male exceeds female is 99%. Similarly, those who have engaged
in mediation are rather limited, with only 40 of 476 men (8.4%) and 26 of 516

Table A-2: Desire to engage in litigation, genderwomen (5.0%) having mediated. Males exceeded females with a 95% statisticalYessignificance.

Morelikely yes

UnsureMorelikely no

No

Total

Male
Female

103
90

114
118

134
157

64
57

14
21

429
443

Total

193

232

291

121

35

872

Table A-1: Court experience, and gender
LawsuitYes

Table A-3: Desire to engage in litigation, gender (by Lawsuit experience)
No

Total

Male
Female

437
498

38
17

475
515

Total

935

55

990

Yes

Mediation
Yes

No

Total

Male
Female

436
490

40
26

476
516

Total

926

66

992

58−4−145 (名城 '09)

( 52 )

More
likely yes

UnsureMorelikely no

No

Total

M
Not
F
experienced
T

91
85

104
115

126
150

58
53

11
21

390
424

176

219

276

111

32

814

M
Experienced F

10
4

10
3

7
5

6
3

3
0

36
15

T

14

13

12

9

3

51

( 53 )(名城'09)

58−4− 144

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート
Table A-5: Overall image of court, gender

We may conclude by noting that even though men tend to have more court experience than women, women are not necessarily reluctant to engage in litiga-

Positivetion. Perhaps, women would likely use it more often given the opportunity to

UnsureOn balance,
Negative

Negative

Total

Male
Female

14
8

51
44

263
294

99
105

27
21

454
472

Total

22

95

557

204

48

926

gain familiarity with court proceedings.
On balance,
Positive

Females tend to consider lawsuits more burdensome than males.
Table A-4 relates gender to the respondents' images and impressions of law-suits in terms of cost, time, and stress. Generally speaking, 80% or more of all
the respondents thought of lawsuits as costly, time-consuming, and stressful. In

have a "heavier" image of lawsuit than males.
Females consider their choice of lawyers more seriously.

comparison, women seem to have a still more negative image of lawsuit.

Table A-6 illustrates the responses to a question which asks whether the re-Compared to men, more women regard lawsuits as stressful, costly and time-spondents will consult lawyers when they face significant problems and con-consuming.

sider litigation. More than 90% of all respondents consider taking legal advice

A related survey question asked the respondents if they have positive or negative image toward court itself. As shown in Table A-5, the responses are slightly

and nearly half of women (42.1%) responded that they would consult with two
or more lawyers while only one third of men (34.5%) responded the same.

more negative than positive. But the majority of them are not either negative

Table A-7 demonstrates the responses to another question where those sur-nor positive, and more women responded that they were "unsure" about theveyed were asked about their presumed difficulty of looking for a lawyer. Morecourt itself than did men. This finding seems to be showing that females tend to

women than men think it would be a difficult task.
Table A-8 relates the respondents' gender preference of their representing attorneys. The results show that, first, the majority of respondents, both men and

Table A-4: Impression of lawsuit, genderwomen, seem to accept either male or female lawyers (58.3% and 54.9%).

Lawsuit is expensive
DisagreeSomewhatdisagreeUnsureSomewhat
agree

Agree

Male
Female

11
11

19
11

39
33

197
196

180
212

446
463

Total

22

30

72

393

392

909

Total

Lawsuit is time-consuming

Secondly, among those who have gender preference, men prefer male lawyers,
while some women prefer male lawyers and others prefer female lawyers.
Finally, female lawyers are preferred almost only by women; more than 80%of those who have the preference for female lawyers are women.

MaleFemale

6
6

9
15

31
40

164
162

246
261

456
484

Total

12

24

71

326

507

940

Male
Female

3
2

10
3

37
28

155
143

262
326

467
502

yers, younger people outweigh older people, while older people show the prefer-

Total

5

13

65

298

588

969

ence for male lawyers compared to younger people.

( 54 )( 55 )

Lawsuit is stressful

58−4−143 (名城 '09)

Table A-9 analyzes the respondents' gender preferences of representing attorneys in light of the respondents' age. The results suggest that variable of age iscorrelated to gender bias. Among those who have the preference for female law-

(名城

'09)

58−4− 142

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート

Table A-6 : Likelihood of consulting with lawyers, gender

Table A-10 : Preference of representing lawyer's gender, age (by Gender)

Not likely to
consult a lawyer

Likely to consult
with one lawyer

Likely to consult withmore than one lawyer

Total

Male
Female

25
23

241
211

140
170

406
404

Total

48

452

310

810

Table A-7 : Difficulty of looking for lawyers, gender
Easy

Fairly easy

UnsureFairlydifficult

Difficult

Total

Male
Female

31
20

63
36

78
73

178
201

112
155

462
485

Total

51

99

151

379

267

947

Table A-8 : Preference of representing lawyer's gender, gender
Male
LawyerMore likely,
M Lawyer

NeutralMore likely,
F Lawyer

FemaleLawyerMale
Female

67
31

105
81

268
256

12
60

8
38

460
466

Total

98

186

524

72

46

926

Male
LawyerMore likely,
M Lawyer

NeutralMore likely,
F Lawyer

FemaleLawyerTotal

70s+ male
60s male
50s male
40s male
30s male
20s male

16
10
17
10
10
4

14
14
15
22
27
13

29
54
52
40
56
37

2
0
2
1
2
5

0
1
0
3
2
2

61
79
86
76
97
61

Total

67

105

268

12

8

460

70s+ female
60s female
50s female
40s female
30s female
20s female

7
10
8
3
3
0

10
17
19
11
17
7

24
52
47
45
60
28

9
10
8
9
12
12

5
7
7
7
8
4

55
96
89
75
100
51

Total

31

81

256

60

38

466

Total

preference of representing lawyers. The data also seems to show that some
women prefer female lawyers. This preference may relate to the apprehensionthat some women tend to feel when faced with a lawsuit. In sum, the evidence

Table A-9 : Preference of representing lawyer's gender, age

suggests that females consider their choice of lawyer more seriously than males.

Male
LawyerMore likely,
M Lawyer

NeutralMore likely,
F Lawyer

FemaleLawyer

70s +
60s
50s
40s
30s
20s

23
20
25
13
13
4

24
31
34
33
44
20

53
106
99
85
116
65

11
10
10
10
14
17

5
8
7
10
10
6

116
175
175
151
197
112

Total

98

186

524

72

46

926

Total



Female pays attention to "reputation" in selecting lawyers.
Question 10 inquires into whether the respondents consider certain factors

relevant in their selection of lawyers. Eleven items were asked about on thequestionnaire : () the lawyer's personal character, () the lawyer's ability,() the lawyer's field of expertise, () the lawyer's reputation, () the lawyer's fees, (  ) the lawyer's willingness to listen attentively in consultation,

Table A-10 analyzes the same responses, but divides the results by the vari-() a feeling of obligation to the person who introduced the lawyer, () the re-able of gender. The results are summarized as follows. First, older men abhor

liability of the person or organization that introduced the lawyer, (female lawyers. Second, younger men tolerate female lawyers. Third, older

you knew the lawyer personally beforehand, (women prefer male lawyers while they also accept female lawyers. Fourth,

could win the case, and (younger women strongly prefer female lawyers.

) the fact

) the fact the lawyer said you) the fact no other lawyers are available.

Table A-11 displays the results of both the males and females, and it evidences

Thus we could conclude that both gender and age correlate to the genderthat females consider "reputation" much more than males. While there are no58−4−141 (名城 '09)

( 57 )( 56 )(名城'09)

58−4− 140

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノートthat the other side will not respect the judgment, (  ) the reaction of family

Table A-11 : Relevance of "reputation" in selecting lawyers, gender
ConsiderSomewhatconsiderUnsureHardlyconsiderDo notconsiderMale
Female

202
278

196
189

49
31

9
1

3
3

459
502

Total

480

385

80

10

6

961

Total

members, friends, etc., and () likelihood of litigation affecting family members, friends, etc. negatively. Table A-12 shows the results. The results evidence
that women tend to worry more about each factor, but they worry especiallymore about the last two factors. Both of those relate to a consideration of others
and of their surroundings, which may suggest that females tend to be moreclear differences between the answers of male and female in terms of other ten

alert to the potential negative side effects of litigation. Again, these results

factors, the answers indicated that more women than men "consider" each factor

seem consistent with the aforementioned comments : (3) that females tend to(though the tables are not shown in this paper). These two points seem consis-

consider lawsuits more burdensome than males, and (4) that females consider

tent with the comments in preceding sections : (3) that females tend to consider
lawsuits more burdensome than males, and (4) that females consider their
Table A-12 : Factors that cause respondents to worry when filing lawsuit, genderchoice of lawyers more seriously.

Cost (Expense of money)

Causesworry

Males and females have similar expectations of lawsuits.
Question 13 asks respondents about their expectations of lawsuits, assuming

they have decided to file an action. With regard to this question, the questionnaire inquired about ten potential expectations. The respondents were asked
whether they expected () to achieve social justice, () to protect their rights,

14
6

5
0

473
1

506

Total

741

211

20

5

2

979

Expense of time
Male
Female

301
349

144
145

16
8

11
4

0
0

472
506

Total

650

289

24

15

0

978

Probability of winningright and wrong, () to protect their interests, () to punish the other side,

Total

what you have to say. With regard to these expectations, there was no significant difference between males and females.


Total

117
94

Male
Female) to have a judge hear

Causes little Does notworry
cause worry

336
405

other side, () to restore relations with the other side, () to clearly decide) to compel the other side to admit the wrongs, and (UnsureMale
Female() to resolve the dispute quickly, () to get the opportunity to talk with the(Somewhatcauses worry

288
342

138
139

36
22

3
0

3
2

468
505

630

277

58

3

5

973

Possibility that opposing party will not comply with judgment
Male
Female

228
275

Total

503

167
163

46
45

16
10

7
3

464
496

330

91

26

10

960

Reaction of family members, friends, etc.

Females tend to worry more when considering litigation.

Male
Female

131
202

185
182

77
67

55
38

19
12

467
501

Total

333

367

144

93

31

968

Likelihood of litigation affecting family members, friends, etc. negatively

The following question (Q14) asked respondents to what extent they worry
about specific factors in light of their decision to litigate. Those factors are :Male
Female

195
283

175
145

58
47

25
14

7
5

460
494

(  ) money, (  ) time, (  ) the probability of winning, (  ) the probability

Total

478

320

105

39

12

954

58−4−139 (名城 '09)

( 58 )( 59 )(名城'09)

58−4− 138

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート
Table A-14 : Feeling of vexatiousness in filing lawsuit, gendertheir choice of lawyers more seriously.
Vexatious

Females expect more of the representing lawyers.

On balance,
vexatious

UnsureOn balance,
not vexatiousNotvexatious

Total

Male
Female

179
196

174
177

84
84

9
14

16
9

462
480

Total

375

351

168

23

25

942

Question 18 asks respondents about the expectations they have of their representing lawyers, assuming they have decided to file a lawsuit. The questionnaire
identified the following potential expectations : (  ) listening attentively andtrying to understand the client, () explaining legal matters plainly, () de-

Male and female show the similar responses on vexatiousness in lawsuit.

vising good solutions for all parties including the other side, and (  ) giving

Question 19 asks respondents to what extent they feel vexatious (wazurawa-

careful consideration to relevant non-parties, such as family members. Table A-shii in Japanese, meaning complicated and troublesome), if they have decided to

13 shows that female expects more of their representing attorney in every fac-

file a lawsuit or have been filed against. Table A-14 shows that a vast majority

tor. This result suggests females' inclination to regard lawsuit as "heavier" andof respondents feel vexatious or somewhat vexatious, with no significant differ-more serious, which is common to the aforementioned conclusions : (3) that fe-ences among men and women. This finding implies that we can separate an im-

males tend to consider lawsuits more burdensome than males, (4) that females

portant feature of female's inclination to regard lawsuit as serious andconsider their choice of lawyers more seriously, and (7) females tend to worry

burdensome from the vexatiousness which a majority of people, regardless ofmore when considering litigation.

gender, feel when filing a lawsuit. Thus, we could not assume that the reason
why women tend to consider litigation as more serious and burdensome is be-

Table A-13 : Respondents' Expectations of representing lawyers, gendercause of their feeling vexatious or frivolous in filing the lawsuit. Other inherent

Listening attentively and trying to understand respondent

reasons must exist for their tendency to think of lawsuits as burdensome andExpectSomewhat
expectUnsureHardlyexpectDo notexpectMale
Female

309
362

131
127

18
12

9
3

3
2

470
506

Total

671

258

30

12

5

976

Male
Female

339
394

118
107

12
4

2
0

1
0

472
505

Total

733

225

16

2

1

977

Total

Explaining legal matters plainly

Devising good solutions for all parties including the other side
Male
Female

280
326

138
139

35
30

13
6

3
1

469
502

Total

606

277

65

19

4

971

outstanding.
Female also has higher expectations of presiding judges.
Another question (Q21) inquires about the respondents' expectations of thepresiding judge, assuming they have decided to file a lawsuit. Respondents considered the following expectations : () that the judge will listen carefully towhat the respondent has to say, () that the judge adequately understands theissues and background of the case, (  ) that the judge will speak to them inplain words, () that the judge will be impartial, () that the judge will pro-

Giving consideration to relevant non-parties, such as family members
Male
Female

235
279

162
169

51
35

11
14

9
2

468
499

mote a settlement, () that the judge will issue a judgment quickly, and ()

Total

514

331

86

25

11

967

that the judge will act in an authoritative manner. As shown in Table A-15, the( 60 )( 61 )

58−4−137 (名城 '09)

(名城

'09)

58−4− 136

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
Table A-15 : Respondents' expectations of presiding judges, genderjudges.
The data we used here are all cases but some missing values, "Don't know" andListening carefully to what respondent has to say
ExpectSomewhat
expectMale
Female

303
368

Total

671

Male
Female

337
387

Total

724

研究ノート

UnsureHardlyexpectDo notexpect

127
106

22
23

14
7

4
2

470
506

233

45

21

6

976

Total

Understanding the issues and background well

"No answer." It is reasonable to doubt whether we would come to the same conclusion if we excluded the respondents who have litigation experience. With thetables of "experienced" respondents excluded (i.e., Table B-1 through Table B-15,
not shown in this paper), which correspond to Table A-1 through Table A-15,

108
97

18
15

9
6

3
2

475
507

205

33

15

5

982

the findings we have presented in this paper are confirmed.

Speaking to respondent in plain words
Male
Female

338
386

108
101

13
15

13
6

3
1

475
509

Total

724

209

28

19

4

984

【Concluding Notes】
This paper forms a part of the research on Japanese litigation behavior undertaken by the Civil Litigation Behavior Research Group, Group C of the
Nationwide Survey on Civil Disputes (Japan) research project, "Disputefemale respondents tended to have higher expectations of the judges on the first

Resolution and Civil Justice in a Legalizing Society." Group C is constituted ofthree items, while there seems to be no significant distinction between men andseven Samurai : Daniel H. Foote as the chief, Shozo Ota, Shusuke Kakiuchi,

women on the last four. The former items concern consideration which could be

Mikio Kawai, Akira Moriya, Yuriko Kaminaga, and Yasuhiro Wada.

shown by the judge to the litigants, while the latter relates to institutional mat-Working with the members of Group C and the research cooperators, whoters. Here again, we could see female's inclination to regard lawsuit as serious

have been working since the very beginning of the research project, has been fulland burdensome.

of fun and stimulation. As for data cleaning, special thanks to Takashi Iida, aresearch cooperator.

Ⅲ. Conclusion

In this paper, the author reported female views on civil litigation in Japanthrough the nationwide quota sampling questionnaire survey to the generalpublic. In general, the data suggest females' inclination to regard lawsuit as serious and burdensome. This conclusion becomes apparent through several findings, including that (3) females tend to consider lawsuits more burdensome
than males, (4) females consider their choice of lawyers more seriously, (7) females tend to worry more when considering litigation, and (8)&(10) female
have higher expectations of their representing lawyers and of the presiding
58−4−135 (名城 '09)

( 62 )( 63 )(名城'09)

58−4− 134

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート
include some important areas for dispute resolution studies.

An Internet Survey Experiment
Analyzing the Japanese People's Judgmenton the Use of Lawyers and Courts

data about the factors, in certain types of cases, affecting the general public's

The Findings From a Nationwide Internet Survey

research and survey implementation using one of the Internet survey compa-

of the General Public Regarding Civil Litigationnies, Borders Inc., in January 2008.

Our current Internet survey is an experiment planned to provide empiricalevaluation of the use of lawyers and the civil justice system. We conducted the

Our survey experiment is designed to compare respondents' answers to three
scenarios, each involving a particular type of legal conflict. We prepared several

Tomohiko MAEDA

variations for each scenario with differentiated control factors from our hypothesis about their evaluation of using law in each case type. The scenarios for
1. Introduction: Research design and objective

Questions 5 and 7 have four (2×2) variations because each scenario contains
two factors with two categories. The story for Question 6 has six (2×3) varia-

In this paper, I present an overview of our study, A Nationwide Internet

tions with two control factors. We prepared twelve types of the questionnaire

Research of the General Public Regarding Civil Litigation. This research is a

and assigned each to a randomly selected group of monitors from those self-follow-up to an earlier study titled A Nationwide Survey of Civil Litigants andregistered with the Internet survey site. We gathered 100 samples (50 men and

Their Lawyers, which was a self-administered survey via questionnaire. We in-

50 women) for each type of questionnaire. Numbers of samples from each age

vestigated experiences of civil litigants and their lawyers, focusing on the deci-group (twenties, thirties, forties, fifties, and sixties) are restricted according tosion-making process by litigants and their evaluation of the civil litigation

the proportion of them in the Japanese general public (Table 1).

system.

Prior studies about Internet research methods established that there are sub-Our previous survey had limitations. First, the survey contained numerous

stantial differences between respondents in Internet survey/research and sam-case types. Findings from prior studies (and our survey) indicate that case typeples from the Japanese general public in other established types of surveys.

could cause significant effects on courses of conflict and affect parties' view of

These differences also exist between the same samples' responses to Internet

the case and the dispute resolution system1. Numbers of samples of litigants ina given case type was so limited that it was impossible to conduct a statistical
Table 1. Numbers of samples assigned to sex/age groups for each type of questionnaire.

analysis of our hypothesis to evaluate the factors affecting litigants' decisions

Male 20-29

10Female 20-29

9

20-29 Total

19

Male 30-39

11

Female 30-39

11

30-39 Total

22

Male 40-49

9

Female 40-49

9

40-49 Total

18

Male 50-59

11

Female 50-59

11

50-59 Total

22

sonal affairs (Jinji-Sosho) from our target population because of the difficulty

Male 60-69

9

Female 60-69

10

60-69 Total

19

in accessing those case files2. Personal affairs suits, such as divorce proceedings,

Male Total

50

Female Total

50

Total

100

in a given type of case.
Second, our survey excluded litigants and their lawyers of cases involving per-58−4−133 (名城 '09)

( 64 )( 65 )(名城'09)

58−4− 132

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート

questionnaires and oral or printed questionnaires3. Taking these findings intomonetary scenario like a loan collection, when a large amount of money is at theconsideration, we designed the center of our survey experiment to be a compari-stake, respondents consider the use of law and the courts to be more necessary

son between responses to different variations of similar questions. This method

or desirable. Second, we hypothesized that litigants and their friends think it isis widely adopted in psychological experiments, where respondents (such as uni-

more acceptable of an outcome to lose a case in court than to "lose" by settle-

versity student volunteers) are usually not random samples of the general pub-

ment.

lic.

At the head of Question 5, we told the survey respondents a story where a

In the main section of the survey, we asked respondents questions about threefriend of the respondent has trouble collecting a loan without interest from a

scenarios, which involved different legal conflicts: "(A)" which was a loan collec-

cousin. The amount in dispute is 300,000 yen (in the low stake variations) andtion from a cousin, "(B)" which was a fight with an unfamiliar man involving

1,500,000 yen (in the high stake variations). Factorial ANOVA of the responses

compensatory damages, and "(C)" which was a divorce claim resulting from ashows that respondents view using a court (filing for conciliation and filing apartner's domestic violence. Each scenario had several variations (four for bothlawsuit) and/or talking to the police more positively when the stakes are high(A) and (C); and six for (B)) which are different in points related to hypo-(1,500,000 yen). This result supports our first hypothesis well (Table 2).

thetical factors of respondents' evaluation about using law in each case. Thus,

In the latter part of Question 5, we presented the subsequent development ofquestions allowed respondents to evaluate law multiple times depending on thethe story but this time after filing lawsuit against the cousin. The plaintiff

incident. More pointedly, we asked the respondents to suppose the incident hap-(survey respondent's friend) ultimately forfeited the case because the judge en-

pened to someone close to them (one of their friends or close relatives) and an-

couraged in-court settlement and the plaintiff's lawyer estimated they would

swer whether they consider it advisable to consult a lawyer, file for conciliation,

eventually lose the case because they lacked evidence. In these evidentiary bleak

file a lawsuit, or talk to the police. In addition to differentiating the scenarios,
we asked respondents about their thoughts about law and courts at the beginning of the questionnaire. We also asked questions about social attitudes (ag-Table2: Significance of effects of factors on variables for answers to Question 5.
(Probability of F score calculated by ANOVA)
Variables (Questions)gressiveness and gender bias) and demographical background. Some typicalAmount indisputeSettlement or Interaction
Judgment
Effect(Scenario #1) Consult a lawyer

0.00000.77830.3275(Scenario #1) Male or female lawyer

0.0834

0.58690.0757

research company when the respondents registered themselves as monitors. We(Scenario #1) File a conciliation

0.00400.71350.4870also used these additional factors in our analysis.

(Scenario #1) File a lawsuit

0.00050.72290.1307(Scenario #1) Consult police

0.99530.80100.2199(Scenario #1) (A) "It is wrong that your friend,
who actually loaned the money, should lose justbecause of lack of evidence." VS.
(B) "If your friend does not have evidence, losing
the case cannot be helped."

0.42410.01470.2866(Scenario #1) Fairness of the result

0.28660.07030.1445(Scenario #1) Acceptability of the result

0.98550.45580.4942'09)

58−4− 130

background factors, such as sex, age, and annual income had been asked by the

2. Findings(A) Loan collection case
In Question 5, we tested two hypotheses. First, we hypothesized that in a
58−4−131 (名城 '09)

( 66 )( 67 )(名城

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート

developments that involved judicial decision-making, the plaintiff declined set-

namely one-year, two-year, and three-year, respectively. It takes about one andtlement and the claim was dismissed. In identical variations that added settle-

half years, on the average, for a given civil case to reach judgment of first in-ment as a factor, the plaintiff followed the lawyer's advice and reachedstance in Japan. So, we assumed that for a one-year variation, lawyers would

settlement but with only nominal payment (200,000 yen for a 1,500,000 yen

evaluate the court's handling of this case to be rather expeditious. After show-

claim; 50,000 yen for a 500,000 yen claim). Again factorial ANOVA shows thating the story, we ask the respondents about their assessments of costs.

under decisional variations respondents are more likely to value the result as

It is worth noting that, according to the result of factorial ANOVA, the dura-"just," view their friend's loss as inevitable , and view the loss in general as bear-tion of the lawsuit did not affect the respondents' evaluation of monetary costable if the claim lacks enough evidence. But there is no statistically significant(Table 3). Our survey also shows that even a one-year lawsuit is considered aeffect of the "acceptableness" of the result. It seems that trusting judges' author-

rather "long" period. It seems that if a civil lawsuit lasts a year that is too long

ity helps the result of a lawsuit to be seen as legitimate, and perhaps acceptable,

for those not a party to it. Duncan's multiple comparison shows that there is aby virtue of a judges' decision.

significant difference in the average score of the "short or long" variable be-

In addition, there is no statistically significant interaction between two independent variables: amount in dispute and result of lawsuit.

tween one-year variations and longer durations (Table 4). It also seems that theJapanese legislature was rather reserved in enacting an obligation on the judiciary and lawyers to finish a trial of first instance within two years from its fil-(B) Tort case (damages compensation from a fight with an unfamiliar man)ing, at least in regard to the view of the general public (or outsiders of the
In Question 6, we tested our hypothesis about the effect of monetary cost andlength of litigation in relation to the result of lawsuits. We assume that people

courts).
What are the effects of monetary and time costs of a lawsuit on the people's

consider the result of a lawsuit (that is, partial acknowledgement of a claim) to
be more just and acceptable if it takes less money and/or less time.
We showed the survey respondents a story about an injury suffered by Mr. A,

Table 3: Significance of effects of factors on variables for answers to Question 6.
(Probability of F score calculated by ANOVA)
Time required

Monetary
cost

Interaction
Effect(Scenario #2) Consult a lawyer

0.54820.85240.7181(Scenario #2) Male or female lawyer

0.17220.14310.2149(Scenario #2) File a conciliation

0.35980.82950.2260(Scenario #2) File a lawsuit

0.15320.87910.5365

Mr. A files a civil litigation against Mr. B and gets awarded 2,000,000 yen. In ex-(Scenario #2) Consult police

0.83430.35990.5795change for his victorious judgment, he expended money and time litigating,(Scenario #2) Monetary cost
(1 for inexpensive / 5 for expensive)

0.76630.00000.9527

which differs from one story variation to another. We made two categories for(Scenario #2) Period of time required(1 for short/ 5 for long)

0.00000.15300.5825

Mr. B's expenses, 500,000 yen in the low-cost variations and 1,000,000 yen in the(Scenario #2) Fairness of the result

0.77050.0166

0.9267high-cost variations. We made three categories for the length of the lawsuits(Scenario #2) Acceptability of the result

0.62660.00010.7710'09)

58−4− 128"a relative of the survey respondent" from a fight with Mr. B, an unknown man,

Variables (Questions)who caused the fight, struck him one-sidedly, and refused to give compensation
for the damages. First, as in Question 5, we asked respondents about theirevaluation of using law in the case. Then we showed the rest of the story where58−4−129 (名城 '09)

( 68 )( 69 )(名城

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
Table 4: Comparison of mean score among variations of time required for the lawsuit.
(Result of Duncan's multiple comparison)(Story#2) Time Number ofreqiredcases

Duncan(a)1-year392

2-year396

3-year392

Significance

研究ノート
Table 5: Significance of effects of factors on variables for answers to Question 7.
(Probability of F score calculated by ANOVA)

Homogeneity subsets(α=.05)
2

1

Severity ofViolence

Interaction
effect(Scenario #3) Consult a lawyer

0.00010.28910.1285(Scenario #3) Male or female lawyer

0.00000.23190.1597

4.60(Scenario #3) File a conciliation

0.00080.04870.0573

4.67(Scenario #3) File a lawsuit

0.05140.18650.9687.205(Scenario #3) Consult police

0.00000.00000.5484(Scenario #3) (A) "The couple should discussand start their married life over again."VS.
(B) "The couple should divorce, since one
spouse wishes to do so."0.00000.00310.0095

4.39

1.000

Sex ofvictimVariables (Questions)

Showing mean scores for homogeneity subsets.
Harmonized mean of sample sizes = 393.324

evaluation of its fairness and acceptability? According to the result of factorial
Table 6: Comparison matrix of mean score of "Desirability of divorce"variable among scenario variations (Result of ANOVA)ANOVA, only monetary expense has statistically significant effect on theirevaluation of a case's outcome. Length of litigation has no effect on this aspect.
They view an awarding of 2,000,000 yen to be more unfair and unacceptable(Scenario #3)
Sex of victim

when it requires a lot of money (half of the award) to reach that judgment.

Female(C) Domestic violence and divorce case

(Scenario #3)
Severity of ViolenceMale

95% confidence interval

MeansStandard
Deviance

Mental

3.623

.064

3.499

3.748

Physical

3.977

.064

3.852

4.101

Mental

3.430

.064

3.305

3.555

Physical

3.453

.064

3.329

3.578

Lower limit Upper limit

In Question 7, we tested our hypothesis about the effects of stereotypes on domestic violence and divorce cases. We assume that respondents would take do-

victims suffering physical violence make respondents particularly likely to re-mestic violence more seriously and be more willing to use law when a husband

ject the view that "The couple should discuss and start their married life overis violent with his wife. We also assume that most people consider only physicalagain" and agree to the view that "The couple should divorce, since one spouseviolence worthy of legal adjudication, though domestic violence also includes

wishes to do so." This result suggests the effect of the domestic violence stereo-

negligence and mental abuse.

type where a husband abuses his wife physically, which requires public author-

Factorial ANOVA shows that people perceive using law (consulting a lawyer,

ity intervention such as the police (Table 6).

filing for a divorce conciliation, and talking to the police) more positively if a

Factorial ANOVA shows that respondents feel female domestic violence vic-

woman suffers domestic violence and wants a divorce. It also shows that respon-tims are better off consulting female lawyers. This data supports our hypothe-dents consider forceful measures (filing a divorce proceeding and talking to thesis about gender bias where female lawyers are seen as specialists and guardians

police) to be desirable if the domestic violence contains physical battery and in-of female victims.

juries (Table 5). Sex of the victim and severity of violence interact with eachother when it comes to desirability of divorce in this hypothetical case. Female
58−4−127 (名城 '09)

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58−4− 126

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート
Table 8: (Scenario #2) Preference of sex of lawyer in the tort case.

(D) Differences by respondents' sex(Scenario #2) Which do you think better to consult a male or female lawyer?

One of the important hypotheses we tested is that men and women are differ-

Better to
consult a
male lawyer.

ent in their preference of their lawyer's sex. With regard to all three scenarios,
we asked whether a male or female lawyer is preferable for consultation. The result of the research shows that it depends on the type of case involved (Table 7).

Male
Sex
FemaleIn regards to the loan collection case, a majority of both male and female respondents answered, "Can't say either way." One-way ANOVA shows that there

Total*On thebalance,better to
consult a
male lawyer

Can't sayeither way

On theBetter tobalance,consult a febetter tomale lawyer.
consult a female lawyer.

Total

Number

89

124

324

36

7

580

%

15.3%

21.4%

55.9%

6.2%

1.2%

100.0%

Number

95

166

275

22

5

563

%

16.9%

29.5%

48.8%

3.9%

.9%

100.0%

Number

290

599

58

12

1143

%

25.4%

52.4%

5.1%

1.0%

100.0%

is no significant difference of average score between them. In the tort case, amajority of men and women answered neutrally, too−but more women respon-

Table 9: (Scenario #2) Preference of sex of lawyer in the domestic violence and divorce case.

dents prefer a male lawyer than their male counterparts (Table 8). Finally, re-(Scenario #2) Which do you think better to consult a male or female lawyer?

garding the domestic violence and divorce claim, male and female respondents

Better to
consult a
male lawyer.

showed the most significant difference. In these types of cases, only a minorityof women respondents said, "Can't say either way." Women show statisticallysignificant preference for female lawyers (Table 9).

Male
Sex
FemaleOn one hand, women tend to rely on masculine lawyers when the opposing
party appears violent. On the other hand, they also seem to view female lawyers

Total*On thebalance,better to
consult a
male lawyer

Can't sayeither way

On theBetter tobalance,consult a febetter tomale lawyer.
consult a female lawyer.

Total

Number

13

24

241

186

121

585

%

2.2%

4.1%

41.2%

31.8%

20.7%

100.0%

Number

13

34

223

191

116

577

%

2.3%

5.9%

38.6%

33.1%

20.1%

100.0%

Number

58

464

377

237

1162

%

5.0%

39.9%

32.4%

20.4%

100.0%

as their guardians in domestic problems.

[Notes]Table 7: (Scenario #3) Preference of sex of lawyer in the loan collection case.

１(Scenario #1) Which do you think better to consult a male or female lawyer?

Male
Sex
FemaleTotal*On theBetter tobalance,consult a febetter tomale lawyer.
consult a female lawyer.

See, Masayuki Murayama and Yoshiyuki Matsumura (Ed.,) Basic Report of theSurvey on Dispute Resolution Behaviors, Yuhi-kaku, 2006.

Better to
consult a
male lawyer.

On thebalance,better to
consult a
male lawyer

Can't sayeither way

Number

46

120

358

40

10

574

Total

２

Jurisdiction of personal affairs suits are transferred from district court to family
court as of 2004. Of those cases terminated in 2004, some cases were filed at district
court before the transfer while others were filed at family court thereafter. Japanese

%

8.0%

20.9%

62.4%

7.0%

1.7%

100.0%

courts keep their case files at the court where cases are originally filed after the cases'

Number

19

143

320

62

8

552

final determination. Thus, files of personal affairs cases are broken up between dis-

%

3.4%

25.9%

58.0%

11.2%

1.4%

100.0%

Number

65

263

678

102

18

1126

%

5.8%

23.4%

60.2%

9.1%

1.6%

100.0%

trict and family courts.
３* Showing the numbers for all the variations combined.

58−4−125 (名城 '09)

See, Norie Honda and Akira Motokawa, Can internet survey be used for social survey?: Result from an experimental study, The Japan institute for labour policy and( 72 )( 73 )(名城'09)

58−4− 124

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
training, 2005. Noboru Ohsumi, "Internet surveys: A review of several experimental

Internet Survey on Use of Lawsuits1

results: Applying data science approach to the exploration of internet survey,"
Keiryo-Kohdoh-gaku, vol. 29 no. 1, pp20-44.

【Survey Design】Nationwide Survey on Civil Disputes, Litigation Behavior
Research Group【Lead Researcher】Daniel H. Foote, Professor, The University of Tokyo【Survey Implementation】Borders, Inc.

Introduction

Thank you very much for participating in this survey.
・We are a group of legal researchers, conducting research aimed at improving
Japan's civil litigation system for the 21st century. We have received publicfunding for this public opinion survey. We recognize that you are very busy,
and we greatly appreciate your willingness to participate in this survey.
・We estimate that it should take about twenty minutes to complete this questionnaire. The questions relate to how you feel and what you think regarding
the use of lawsuits and lawyers, so there are no "correct" answers. Please respond frankly regarding your feelings about lawsuits and lawyers. If there
are aspects you would like to address that are not covered by the questions,
we would be grateful if you could let us know by using the space provided at
the end of this questionnaire.
・The results of this survey will be placed in numerical form and analyzed statistically. Accordingly, there is no possibility that your name or your answers could be identified from the results of the research.

58−4−123 (名城 '09)

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Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
First, we ask you about your experience of lawsuits and your general imageof law, lawsuit, and lawyers.

研究ノート
which made you consider consulting a lawyer ? Please exclude problems
which you have dealt with as a part of your job. Please choose the single
most applicable response. If you have one or more such experience, please

Question 1

indicate how many by choosing from the responses in the pull-down menu.

(1) Have you yourself ever experienced any civil lawsuit in your life? (Please1

No.

exclude criminal cases and cases in which you were involved as a part of

2

Yes.

your job.) Please choose the single most applicable response. If you have ex-3

I don't know.

perienced one or more civil lawsuits, please indicate how many by placing*

If the respondent chooses 2, a pull-down menu appears, from which the→() casesthe number in the space provided.

respondent selects the appropriate number.The choices on the pull-down

1No.

menu are identical to the pull-down menu in Question 1 (1).

2

Yes.

3

I don't know.

*

If the respondent chooses 2, a pull-down menu appears, from which the

Do you agree or disagree with the following statements about lawsuits?

respondent selects the appropriate number. (The choices on the pull-

Please answer the following questions in terms of the applicable degree. Pleasedown menu are: "I don't remember," "1," "2," "3," and "4 or more".)2choose the single most applicable response.

→() cases
Question 2(2) Have you yourself ever experienced conciliation at a court in your life?
(Please exclude conciliation cases in which you were involved as a part ofyour job.) Please choose the single most applicable response. If you have ex-* Utilize radio-buttons to show choices for the respondent, in accordance withthe scale below.
(1) A civil lawsuit achieves fair resolution to a conflict.
I disagree.

On balance,
I disagree.

Can't sayeither way

On balance,
I agree.

I agree.

Don't know.

1

2

3

4

5

9

perienced one or more conciliations, please indicate how many by placing
the number in the space provided.
1

No.

2

Yes.

3

→

Number of Family Court conciliation cases () casesNumber of Summary Court conciliation cases () cases(2) A civil lawsuit can achieve true resolution to a problem.
I disagree.

On balance,
I disagree.

Can't sayeither way

On balance,
I agree.

I agree.

Don't know.

1

2

3

4

5

9

I don't know.

* If the respondent chooses 2, pull-down menus appear inquiring about the
number of Family Court cases and Summary Court conciliation cases.

(3) To the extent possible, I don't want to utilize a civil lawsuit.
I disagree.

On balance,
I disagree.

Can't sayeither way

On balance,
I agree.

I agree.

Don't know.

1

2

3

4

5

9

For each of those questions, the pull-down menus are identical to thepull-down menu in Question 1 (1).
(3) In the past 5 years (since January 2003) , have you experienced any problem
58−4−121 (名城 '09)

( 76 )( 77 )(名城'09)

58−4− 120

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers(4) Utilizing a civil lawsuit would make my relationship with the other party

研究ノートB) I trust the courts.
I disagree.

On balance,
I disagree.

Can't sayeither way

On balance,
I agree.

I agree.

Don't know.

1

2

3

4

5

9

worse.
I disagree.

On balance,
I disagree.

1

2

Can't sayeither way

On balance,
I agree.

3

I agree.

4

5

Don't know.
9C) The very thought of getting involved in lawsuits somehow scares me.
I disagree.

On balance,
I disagree.

Can't sayeither way

On balance,
I agree.

I agree.

Don't know.

1

2

3

4

5

9

(5) A civil lawsuit requires a lot of money.
I disagree.

On balance,
I disagree.

1

2

Can't sayeither way
3

On balance,
I agree.

I agree.

4

5

Don't know.
9(2) Do you have a positive image of lawsuits, or a negative image of lawsuits?

(6) A civil lawsuit takes a long time.
I disagree.

On balance,
I disagree.

Can't sayeither way

Please choose the single most applicable response.
On balance,
I agree.

* Utilize radio-buttons to show choices for the respondent, in accordance with
I agree.

Don't know.

the scale below.
1

2

3

4

5

9

A positiveimage

On balance, apositive image

Can't sayeither way

On balance, anegative image

A negative
image.

Don't know.

1

2

3

4

5

9

(7) A civil lawsuit entails a lot of mental fatigue (stress).
I disagree.

On balance,
I disagree.

Can't sayeither way

On balance,
I agree.

I agree.

Don't know.

1

2

3

4

5

9

Question 4
In this question, we ask you your opinion about law and lawsuits.

Question 3* Utilize radio-buttons to show choices for the respondent, in accordance with

What is your image of lawsuits?

the scale below.

How do you feel with regard to the following three statements ((a) to (c)) ?

(1) Which is closest to your opinion about the relationship between law and so-

Please choose the single most applicable response.

ciety, View  or View  ? Please choose the single most applicable re-* Utilize radio-buttons to show choices for the respondent, in accordance withsponse.
 Society should
be changed to1meet the contents Closeto of the law.

the scale below.
A) I respect judges.
I disagree.

On balance,
I disagree.

Can't sayeither way

On balance,
I agree.

I agree.

Don't know.

1

2

3

4

5

9

2
Somewhatclose to 

3
4
Can't say Somewhat
either way. close to 

 The law should
be changed to5
Close to meet the reality of
society.

(2) Which is closest to your opinion about the way courts should make their decisions, View (A) or View (B) ? Please choose the single most applicable

58−4−119 (名城 '09)

( 78 )( 79 )(名城'09)

58−4− 118

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
response.
 Courts shouldmake decisions in1
accordance with
Close
to 
what is written
in laws.

研究ノート(1) Do you think it is better for your friend to consult a lawyer, or not? Please Courts shouldmake decisions
2
3
4
5
Somewhat Can't say Somewhat Close to flexibly, with reclose to  either way. close to gard to the actual
circumstances ofcases.

choose the single most applicable response.
Better not to
On balance,
consult a
better not tolawyerconsult a lawyer
1

2

Can't sayeither way.

On balance,
better to consult a lawyer.

Better to
consulta lawyer.

Don't know.

3

4

5

9

(3) Which is closest to your opinion regarding whether we should obey law,(2) If your friend does consult a lawyer, do you think it is better for your friend
View (A) or View (B) ? Please choose the single most applicable response.
 We must certainly obey the1
law because it is Closeto 
the law.

 We need notobey the law if it
2
3
4
5
Somewhat Can't say Somewhat Close to does not meet theclose to  either way. close to real situation.

to consult a male lawyer or a female lawyer? Please choose the single mostapplicable response.
Better to
On balance,
consult a
better to consult
male lawyer. a male lawyer
1

From here on, we ask your views about concrete cases.
Question 5

2

Can't sayeither way.
3

On balance, betBetter to
ter to consult a
consult a
female lawyer. female lawyer. Don't know.
459(3) Do you think it is better for your friend to go to court or not? Please choose

Please read about the following incident involving a loan and answer the questions.

the single most applicable response.
A) Do you think it is better for your friend to file for conciliation or not?

One of your friends has a cousin who has been out of employment andhas just been promised a new job. The cousin made the following request

Better not to On balance, betfile forter not to fileconciliation. for conciliation

to your friend.

1

The cousin: "While out of employment, I have borrowed substantial

2

Can't sayeither way.

On balance,
better to filefor conciliation

Better to
file forconciliation

Don't know.

3

4

5

9

B) Do you think it is better for your friend to file a civil lawsuit or not?

amounts of money from consumer loan companies (loan sharks) . I can
pay back so little money each month that the amount of interest keeps increasing month by month. For that reason, I would like to pay back the

Better not to On balance, betfile a civil
ter not to file acivil lawsuit.
lawsuit.

remaining principal and interest entirely. Could you do me the favor of
lending me 1,500,000 yen?"

1

2

Can't sayeither way.
3

On balance
Better tobetter to file afile acivil lawsuit. civil lawsuit.
4

5

Don't know.
9(4) Do you think it is better for your friend to talk to the police about this mat-Your friend lent the cousin 1,500,000 yen without interest, on the promisethat the cousin would "pay it back over a two and a half year period, beginning in six months, at 50,000 yen a month." It has been one year since

ter? Please choose the single most applicable response.
Better not to On balance, bettalk to the ter not to talkpolice.
to the police.

Can't sayeither way.

On balance,
better to talk Better to talkto the police. to the police. Don't know.

your friend lent the cousin the money, but there is no sign of the cousin
paying back the money.

58−4−117 (名城 '09)

1

( 80 )( 81 )

2

3

4

5

(名城

9

'09)

58−4− 116

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
This incident continues as follows. Please read about subsequent developments and answer the questions.

Question 6
Please read about the following incident involving a fight and answer the

Later on, your friend asked a lawyer to file a civil lawsuit against thecousin. At trial, the cousin contested the case, saying, "I don't recall borrowing any money at all."Near the end of the trial, the judge recommended both parties to settle
the case. At that time, your friend's lawyer said, "Since we have insufficient evidence to prove you lent the money, we may lose this case."
Your friend settled the case on the condition that a relative would pay
your friend 200,000 yen in cash immediately(5) Which is the closest to your opinion about the statement "we may lose thecase because of insufficient evidence," View (A) or View (B) ? Please choose
the single most applicable response.
 It is wrong thatyour friend, who
1
actually loaned
Close
the money, should to 
lose just becauseof lack of evidence.

研究ノート

 If your friend
does not have2
3
4
5
Somewhat Can't say Somewhat Close to evidence, losing
close to  either way. close to 
the case cannot
be helped.

questions.
Mr. A, who is one of your close relatives, got into a quarrel with Mr. B,
a male office worker, after they nearly ran into each other on the subway
platform. In a one-sided fashion, Mr. B hit Mr. A with his fist, causing
serious injury.
It was Mr. B who caused the near collision by rushing out of a departing
subway train at the last moment.
However, Mr. B insists that it was Mr. A's fault and has not given him
an apology nor any compensation.
(1) Do you think it is better for Mr. A, who was struck, to consult a lawyer, or
not? Please choose the single most applicable response.
Better not to
On balance,
consult a
better not tolawyerconsult a lawyer
1

2

Can't sayeither way.

On balance,
better to consult a lawyer.

Better to
consulta lawyer.

Don't know.

3

4

5

9

(2) If Mr. A does consult a lawyer, do you think it is better for him to consult
a male lawyer or a female lawyer? Please choose the single most applicable(6) What do you think about the outcome of your friend's case? Please choose
response.
the single most applicable response.
Better to
On balance,
consult a
better to consult
male lawyer. a male lawyer

A) Do you consider the outcome fair or unfair?
On balance,
It is an unfair it is an unfair
outcome.
outcome.

Can't sayeither way.

On balance,
it is a fairoutcome.

It is a fairoutcome.

Don't know.

3

4

5

9

1

2

Can't sayeither way.
3

On balance, betBetter to
ter to consult a
consult a
female lawyer. female lawyer. Don't know.
459(3) Do you think it is better for Mr. A, who was struck, to go to court or not?
1

2

Please choose the single most applicable response.
B) Do you consider the outcome acceptable or unacceptable?
A) Do you think it is better for him to file for conciliation or not?
It is an
On balance, it
unacceptable is an unacceptoutcome.
able outcome.
1

2

Can't sayeither way.
3

On balance,
it is an accept- It is an acceptable outcome. able outcome. Don't know.
45

Better not to On balance, betfile forter not to fileconciliation. for conciliation

On balance,
better to filefor conciliation

Better to
file forconciliation

Don't know.

3

4

5

9

9
1

58−4−115 (名城 '09)

Can't sayeither way.

( 82 )( 83 )

2

(名城

'09)

58−4− 114

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
B) Do you think it is better for him to file a civil lawsuit or not?
Better not to On balance, betfile a civil
ter not to file acivil lawsuit.
lawsuit.
1

Can't sayeither way.

2

3

On balance
Better tobetter to file afile acivil lawsuit. civil lawsuit.
4

5

研究ノート
(3) What do you think about the outcome of Mr. A's case? Please choose thesingle most applicable response.

Don't know.

A) Do you consider the outcome fair or unfair?
On balance,
It is an unfair it is an unfair
outcome.
outcome.

9

Can't sayeither way.

On balance,
it is a fairoutcome.

It is a fairoutcome.

Don't know.

3

4

5

9

(4) Do you think it is better for Mr. A, who was struck, to talk to the police
1

about this matter? Please choose the single most applicable response.
Better not to On balance, bettalk to the ter not to talkpolice.
to the police.
1

Can't sayeither way.

2

3

On balance,
better to talk Better to talkto the police. to the police. Don't know.
452B) Do you consider the outcome acceptable or unacceptable?
It is an
On balance, it
unacceptable is an unacceptoutcome.
able outcome.

Can't sayeither way.

On balance, it
is an acceptable outcome.

It is anacceptableoutcome.

Don't know.

3

4

5

9

9
1

2

This incident continues as following. Please read about subsequent developQuestion 7

ments and answer the questions.
Mr. A, who was struck, asked a lawyer to file a civil lawsuit against Mr.
B and claimed 3,000,000 yen as compensation for his damages (medical
costs and mental damages).

Please read about the following incident involving family problem and answer
the questions.
Mrs. C, a female friend of yours, has been married to Mr. C for 10 years.

The trial took 1 year and resulted in a 2,000,000 yen judgment in Mr. A'sfavor. Soon after the judgment Mr. B paid him the 2,000,000 yen in full.
Mr. A's expenses, for lawyer fees, court fees, and the like, came to 500,000 yen.
(1) Do you think the 500,000 yen it cost Mr. A for the case was inexpensive or

They both have jobs and they live together with their 8-year old son. For
the past year or so, Mrs. C has been telling you about her troubles.
When Mr. C gets drunk he sometimes commits acts of violence, and yourfriend Mrs. C has been distressed by this.
About a year ago, it seems that Mr. C began to feel more frustrated

expensive?

about his job than before, and he began drinking heavily every night. He

Inexpensive

On balance,
inexpensive

Can't sayeither way.

On balance,
expensive

Expensive

Don't know.

1

2

3

4

5

9

often struck Mrs. C and swore at her. On several occasions, Mrs. C, yourfriend, suffered bruises that lasted for about a week.
A half-year ago, Mr. C went into a drunken rage and started throwing(2) Do you think the 1 year period of time it took for the trial in this case wasshort or long?

dishes all over. Mrs. C took her son and left, and sought refuge at her
parents' house. Mr. C apologized, and, after about a week, Mrs. C returned to their house..

Short

On balance,
short

Can't sayeither way.

On balance,
long

Long

Don't know.

1

2

3

4

5

9

58−4−113 (名城 '09)

Thereafter Mr. C refrained from drinking and as a result there were noacts of violence for a while, but about a month ago he again began to( 84 )( 85 )(名城'09)

58−4− 112

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート

drink and commit acts of violence. Mrs. C again has taken refuge, to-A) Do you think it is better for her to file for divorce conciliation or not?

gether with her son, at her parents' house.
Your friend Mrs. C phoned Mr. C, saying: "I want a divorce from you andI want to raise our son myself. I would like you to pay the child-rearing

On balance,
Better not to better not tofile for divorce file for divorce
conciliation.
conciliation

expenses."1

Over the phone, Mr. C apologized and asked Mrs. C to come back with
their son.

2

Can't sayeither way.

On balance,
better to filefor divorce
conciliation

Better to
file fordivorceconciliation

Don't know.

3

4

5

9

* For respondents who choose 4 or 5 in previous question, proceed to the nextquestion B) .

(1) Do you think it is better for Mrs. C to consult a lawyer or not? Pleasechoose the single most applicable response.
Better not to
On balance,
consult a
better not tolawyerconsult a lawyer
12

think it is better for Mrs. C to file a divorce lawsuit or not??

Can't sayeither way.

On balance,
better to consult a lawyer.

Better to
consulta lawyer.

Don't know.

3

4

5

9

a male lawyer or a female lawyer? Please choose the single most applicable
response.
Can't sayeither way.

Better not to On balance, betfile a divorce ter not to file alawsuit.
divorce lawsuit.
1(2) If she does consult a lawyer, do you think it is better for Mrs. C to consult

Better to
On balance,
consult a
better to consult
male lawyer. a male lawyer

B) If they cannot reach consent on divorce in the divorce conciliation, o you

On balance, betBetter to
ter to consult a
consult a
female lawyer. female lawyer. Don't know.

2

3

4

5

9

3

On balance bet- Better to file
ter to file a dia divorce
vorce lawsuit.
lawsuit.
Don't know.
459(5) Do you think it is better for Mrs. C to talk to the police about this matter?
Please choose the single most applicable response.
Better not to On balance, bettalk to the ter not to talkpolice.
to the police.
1

1

2

Can't sayeither way.

2

Can't sayeither way.
3

On balance,
better to talk Better to talkto the police. to the police. Don't know.
459(6) With regard to the trouble between Mr. and Mrs. C, which of the following(3) In Japan, if one member of a married couple wishes divorce and the otherrefuses divorce by consent, they will go through a divorce conciliation at a
Family Court. If they cannot reach any agreement at the divorce conciliation, they will try the case in a divorce lawsuit. Do you think it is better for
Mrs. C to go to court or not? Please choose the single most applicable re-two opinions do you agree with, View (A) or View (B) ? Please choose thesingle most applicable response.
 The couple
should discussand start theirmarried life
over again.

1
Close
to 

2
3
4
5
Somewhat Can't say Somewhat Close to
close to  either way. close to 

 The couple
should divorce,since onespouse wishes
to do so.

sponse.

58−4−111 (名城 '09)

( 86 )( 87 )(名城'09)

58−4− 110

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
From here on, we ask you about yourself.

研究ノート
single most applicable response.
(1) Tea tastes better if a woman makes it.

Question 8

Strongly
disagreeSomewhatdisagreeCan't sayeither way.

Somewhatagree.

Strongly
agree.

Don't know.

1

2

3

4

5

9

How well does each of following statements  to (5) fit you? Please choose
the single most applicable response.
(1) I don't hesitate to insist on my own rights.
Does not fit
me at all.

Does not fit
me well.

Can't sayeither way.

1

2

3

(2) Men should be tall.

Fits me a little. Fits me well. Don't know.
4

5

Does not fit
me well.

Can't sayeither way.

1

2

3

Fits me a little. Fits me well. Don't know.
4

5

2

Somewhatagree.

Strongly
agree.

Don't know.

1

2

3

4

5

9

Can't sayeither way.
3

Strongly
disagreeSomewhatdisagreeCan't sayeither way.

Somewhatagree.

Strongly
agree.

Don't know.

1

2

3

4

5

9

9

(3) No one seeks to make me suffer.

1

Can't sayeither way.

(3) Women are more emotional than men.

Does not fit
me at all.

Does not fit
me well.

Somewhatdisagree9(2) I often disagree with others.

Does not fit
me at all.

Strongly
disagree(4) Women cannot be treated on an equal footing with men with regard towork, because there is a possibility women will give birth.
Fits me a little. Fits me well. Don't know.
45Strongly
disagreeSomewhatdisagreeCan't sayeither way.

Somewhatagree.

Strongly
agree.

Don't know.

1

2

3

4

5

9

9

(4) I often meet people I don't like.
Does not fit
me at all.
1

Does not fit
me well.
2

Can't sayeither way.
3(5) Men are more aggressive than women.
Fits me a little. Fits me well. Don't know.
45Strongly
disagreeSomewhatdisagreeCan't sayeither way.

Somewhatagree.

Strongly
agree.

Don't know.

1

2

3

4

5

9

9

(5) When I disagree with others, I cannot help arguing with them.
Does not fit
me at all.

Does not fit
me well.

Can't sayeither way.

Fits me a little. Fits me well. Don't know.

Ｆ１ The next inquiries relate to your current occupation and your job respon1

2

3

4

5

9

sibilities.
(1) What is your current occupation? Please choose the single most applicable

Question 9

response.

People say various things about differences between men and women. Do you

１ Self-employed, related to agriculture or fisheries (manager or employee)

agree or disagree with the following statements(1) to (5). Please choose the２ Self-employed, related to commerce or manufacturing (manager or

58−4−109 (名城 '09)

( 88 )( 89 )(名城'09)

58−4− 108

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート
３ High school (including junior high school under the old system; indus-

employee)
３ Self-employed, other (manager or employee)(Please explain：trial, commercial, or agricultural school under the old system; and girls')

high school)

４ Managerial employee (company, bureaucracy, store, etc.)

４ Junior college, higher vocational school

５ Sales-related employee (company, bureaucracy, store, etc.)

５ College (including high school under the old system; higher vocational

６ Technical employee (company, bureaucracy, store, etc.)

school under the old system; and normal school)

７ Laborer employee (company, bureaucracy, store, etc.)

６ Graduate school

８ Clerical employee (company, bureaucracy, store, etc.)

７ NA

９ Teacher
10 Professional (doctor, lawyer, etc.)

Ｆ３ Are you currently studying law or have you studied law in the past?

11 Part-time worker

Please choose the single most applicable response.

12 Full-time homemaker

１ You have studied law in the law faculty of a university with a program

13 Student

in law or at a graduate program in law

14 Unemployed
15 Other (Please explain:

２ You have studied law in a faculty other than law or a graduate program)

other than in law(2) Have you ever had work experience involving legal matters?

３ You have studied law elsewhere than in a university (including self-

１ You have had direct work experience relating to legal matters, such as
in a legal department

study)
４ You have not studied law

２ You have had experience that involved law, in connection with your

５ NA

regular work in such fields as business, sales, manufacturing, etc.
３ You have not had experience involving legal matters in connection withyour work

Ｆ４ Including you yourself, how many family members are living together inyour household? Please choose the single most applicable response.

４ NA

１ One (myself alone)

４ FourＦ２ Please tell us the highest educational level you have completed (including

２ Two

５ Fivethe current level, for those still in school). Please choose the single most appli-

３ Three

６ Six or more (Please specify how many:)

cable response. (Please do not include trade schools.)
１ No educational level completed

Ｆ５ What is the total household net worth (the total amount, as calculated in

２ Elementary school or junior high school (including elementary school
under the old system)
58−4−107 (名城 '09)

monetary terms, of fixed assets, such as land and buildings; deposits; andshares; etc., reduced by the amount due on loans) of the family members who( 90 )( 91 )(名城'09)

58−4− 106

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート

are living together (if you are living on your own, your net worth alone) ?

The Lawyer-Client Relationship in Civil Litigation

Please choose the single most applicable response.

Mutual Understanding or Misunderstanding?

１ Under 10,000,000 yen

４ Between 50,000,000 and 70,000,000 yen

２ Between 10,000,000 and

５ Between 70,000,000 and 100,000,000 yen

30,000,000 yen
３ Between 30,000,000 and

Shozo OTA
６ Over 100,000,000 yen

50,000,000 yen[Abstract][Notes]１

Here I show one of twelve variations of our internet questionnaires for reference.

２ This is an instruction to the programmers. Our instructions to the programmers aremarked with * and they were originally written in red.

We analyzed the lawyer-client relationship in civil litigation using the empirical data we gathered through our nation-wide survey of court files, civil litigants, and their lawyers. We investigated the factors considered by litigants
and their lawyers in deciding whether to sue or to deny the claim, the litigants'
assessment of their lawyers' accuracy in the initial case evaluation, the assessment of achievement vis--vis the initial case evaluation, the customer satisfaction of litigants with regards to their lawyers as well as the lawyers' assessmentof their clients' satisfaction, the division of labor in initiating litigation or indenying the plaintiff's claim, in legal construction, and in evidence gathering.

[Keywords]
civil litigation, lawyer-client relationship, interaction between litigant and lawyer, principal-agent relationship, division of labor, initiative distribution

Introduction

The lawyer-client relationship is one of the typical principal-agent relationships,
where the agent has independent (private) interests different from those of theprincipal, and these differing interests cause the agent's incentive to deviate
from the principal's best interest. The lawyer-client relationship has, however,
58−4−105 (名城 '09)

( 92 )( 93 )(名城'09)

58−4− 104

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート

some unique features that make it atypical to the principal-agent relationship,

respect to each of the following items in terms of degree. With respect to eachnamely, (a) a lawyer and his/her client share a common objective in winningof the items, please choose the single most applicable response.

the case, which is obvious to both of the lawyer and the client in the case of a

The cost of the lawsuit

judgment being rendered (although it is not so clear in the case of a settlement);



The time the lawsuit would takeand (b) a lawyer and his/her client have an incentive to cooperate because of theProspects of winning the lawsuit

unique bilateral asymmetry of information, i.e., a lawyer has overwhelming in-The possibility the other side would not comply even if you won theformation on the law whereas his/her client has overwhelming information on
the facts and evidence. The lawyer and the client need to cooperate if they wantlawsuit

to win the case. These features lead to the necessity of communication and mu-

How family members, those at your workplace, or neighbors would
react The possibility the lawsuit would result in trouble for family members,

tual understanding between a lawyer and his/her client.
By using the data collected by our survey of civil litigants and their lawyers,

those at your workplace, or neighbors

this paper empirically examines if the mutual understanding between a lawyer[common scale for answers]

and his/her client has materialized or if there are misunderstandings between

Worriedthe client

Worried theCan't say one Didn't worry theclient somewhat way or other client very much

Didn't worry
the clientthem. The data used were obtained from (a) litigants who were represented by1

lawyers, and (b) their respective lawyers.

2

3

4

5

NA

We asked the respondents to answer from the 5 degree scale, i.e., 1: Worried
1. Decision to Sue or to Deny the Claim: Factors of Consideration

you, 2: Worried you somewhat, 3: Can't say one way or other, 4: Didn't worry
you very much, 5: Didn't worry you, which is shown above. The results are as

At the initial stage when prospective plaintiffs decide whether or not to sue

follows:
Table 1and when the defendants then decide whether or not to deny the claim, the po The
cost ofthelawsuit(＊)

tential litigants have a number of factors to consider. We asked the litigants
what factors they considered at this initial stage, and we also asked their lawyers about what they thought their clients were worried about in addition towhat the lawyers themselves considered at that stage.
1. 1. Litigant Survey
The questions we asked are as follows:
Question 14 At the time you filed the lawsuit/decided to refuse the plaintiff's The  The possi-  How family  The possibiltime the Prospects bility themembers,
ity the lawsuit
lawsuit ofother side
those at your would result in
would
winning would notworkplace, or trouble for famtake
thecomply even if neighbors
ily members,(＊)
lawsuityou won thewould react(＊) those at your(*)
lawsuitworkplace, orneighbors(＊)

Mean
Plaintiffs(Represented)
N

1.96

1.88

1.88

2.26

3.25

3.40

235

233

230

218

216

225

Mean
Defendants(Represented)
N

2.11

1.98

1.96

2.49

3.00

3.12

123

126

123

117

110

118

claim, to what extent did the items below worry you? Please answer with(＊): Statistically significant by 1% between means of plaintiffs and defendants.

58−4−103 (名城 '09)

( 95 )( 94 )(名城'09)

58−4− 102

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート

The plaintiffs and the defendants were quite seriously worried about factors(1) [litigation costs], (2) [litigation time] and (3) [win/lose], while they were

performed
 How the client's family members, those at the client's workplace, or the

only slightly worried about factor (4) [compliance by the other side]. The fac-client's neighbors would react

tors (5) [reaction of family members, etc.] and (6) [trouble for family mem-

 The possibility the lawsuit would result in trouble for the client's fam-bers, etc.] did not worry the litigants. In all factors, except (2) [the time theily members, those at the client's workplace, or the client's neighbors

lawsuit would take], the differences of means are statistically significant, i.e.,

We also asked the lawyers to answer from the 5 degree scale, i.e., 1: Worriedfactors (1), (3), and (4) worried the plaintiffs more than it did the defendants,

the client, 2: Worried the client somewhat, 3: Can't say one way or other, 4:

and factors (5) and (6) worried the plaintiffs less than it did the defendants. In

Didn't worry the client very much, 5: Didn't worry the client. At the same timeshort, the plaintiffs and the defendants were both similarly seriously worried

we asked the representing lawyers about their own concerns. The question is as

about "the time the lawsuit would take"; although both the plaintiffs and the de-follows:

fendants were seriously concerned about the costs of the lawsuit and the pros-(3) At the time of filing the lawsuit, to what extent did the following items

pects of winning/losing the lawsuit, these factors appeared to worry theworry you? With respect to each item, please choose the single most applica-

plaintiffs more than it did the defendants; the remaining factors (4), (5), andble response.

(6) were not overly concerning to either of the litigants.
1. 2. Lawyers' Worry and Lawyers' Understanding about Clients' Worry
To what extent were the lawyers themselves worried about these factors?



The cost of the lawsuit

The time the lawsuit would takeProspects of winning the lawsuitThe possibility the anticipated judgment or settlement would not be

Moreover to what extent do the lawyers accurately understand the concerns of
their clients? We asked the representing lawyers the same questions as the liti-

performed
 How the client's family members, those at the client's workplace, or thegants in 1.1 above. The question is as follows:client's neighbors would react

Question 10 To what extent do you feel that your client, as of the time of filing The possibility the lawsuit would result in trouble for the client's fam-the lawsuit, was worried about the following items? In the event there were

ily members, those at the client's workplace, or the client's neighbors

multiple clients, please choose one principal client and answer with respect to

We used the same 5 degree scale measure. The results of the plaintiffs' side arethat client. With respect to each item, please choose the single most applicableas follows. We compare the answers by plaintiff lawyers to those of plaintiffs

response.

themselves.



The cost of the lawsuit

The time the lawsuit would takeriously worried than their lawyers, and the plaintiffs were more worried thanProspects of winning the lawsuit

their lawyer's estimate (empathy) of their clients' worry. As shown by the as-

The possibility the anticipated judgment or settlement would not beterisks for factor (1), (2), and (4) in Table 2, the plaintiffs are worried about

58−4−101 (名城 '09)

As is shown in Table 2 and Table 3, in all factors the plaintiffs were more se-( 96 )( 97 )(名城'09)

58−4− 100

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート
Table 3

Table 2 The cost of the lawsuit
 The time the lawsuit would take Prospects of winning the lawsuit

N

Mean

235

1.96(＊)

201

3.56(＊)

Plaintiffs
Plaintiff Lawyers(themselves)

233

1.88

(＊)

203

3.24(＊)

Plaintiffs
Plaintiff Lawyers(themselves)

230

1.88

203

2.70

Plaintiffs
Plaintiff Lawyers(themselves)

Plaintiffs
Plaintiff Lawyers(themselves)

218

2.26(＊)

202

3.20

(＊)

 How the client's family members,
those at the client's workplace, or theclient's neighbors would react

Plaintiffs
Plaintiff Lawyers(themselves)

216

3.25

192

4.35

 The possibility the lawsuit would
result in trouble for the client's family members, those at the client's
workplace, or the client's neighbors

Plaintiffs

225

3.40

Plaintiff Lawyers(themselves)

197

0.000

0.000

0.000

 The possibility the anticipatedjudgment or settlement would not be
performed

4.57

N

Mean

235

1.96

 The cost of the lawsuit

Plaintiffs
Plaintiff Lawyer's
Empathy202

2.59

Plaintiffs
Plaintiff Lawyer's
Empathy233

1.88

 The time the lawsuit would take

203

2.69

Plaintiffs
Plaintiff Lawyer's
Empathy230

1.88

 Prospects of winning the lawsuit

203

2.10

p

p

0.000

0.000

0.000

Plaintiffs
Plaintiff Lawyer's
Empathy

218

2.26

0.000

 The possibility the anticipatedjudgment or settlement would not be
performed201

3.14(＊)

Plaintiffs
Plaintiff Lawyer's
Empathy

216

3.25

0.000

 How the client's family members,
those at the client's workplace, or theclient's neighbors would react

184

4.14

 The possibility the lawsuit would
result in trouble for the client's family members, those at the client's
workplace, or the client's neighbors

Plaintiffs

225

3.40

Plaintiff Lawyer's
Empathy

190

4.31

0.000

p

0.000

(＊)

0.000

0.000

(＊): Plaintiffs' Mean < 3.0 < Plaintiff's Lawyers.

Table 4these factors while the lawyers are not. As shown by the asterisks at factor (4)in Table 3, the plaintiffs are worried about the factor (4) while the lawyers do
not think that the clients worry. In short, the plaintiff lawyers tend to underes- The cost of the lawsuit

timate the clients' worry.
The results of the defendants' side are as follows.

than their lawyers and the defendants were more worried than their lawyer's estimate (empathy) of their clients' worry. As shown by the asterisks at factors(1), (2), and (4) in Table 4, the defendants are worried about these factors while
the lawyers are not. As shown by the asterisks at factors (1), (2), and (4) inTable 5, the defendants are worried about the factor (4) while the lawyers do
not think that the clients are worried. In short, the defendant lawyers tend to

N

Mean

123

2.11(＊)

105

3.75(＊)(＊)

Defendants
Defendant Lawyers(themselves)

126

1.98

 The time the lawsuit would take105

3.35(＊)

Defendants
Defendant Lawyers(themselves)

123

1.96

 Prospects of winning the lawsuit

106

2.62

 The possibility the anticipatedjudgment or settlement would not be
performed

Defendants
Defendant Lawyers(themselves)

117

2.49(＊)

103

3.78(＊)

 How the client's family members,
those at the client's workplace, or theclient's neighbors would react

Defendants
Defendant Lawyers(themselves)

110

3.00

102

4.19

 The possibility the lawsuit would
result in trouble for the client's family members, those at the client's
workplace, or the client's neighbors

Defendants

118

3.12

Defendant Lawyers(themselves)

100

4.58

As is shown in Table 4 and Table 5, in all factors, except (3) [Prospects ofwinning the lawsuit] in Table 5, the defendants were more seriously worried

Defendants
Defendant Lawyers(themselves)

0.000

0.000

0.000

0.000

0.000

0.000

underestimate the clients' worry.
58−4−99(名城 '09)( 98 )( 99 )(名城'09)

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Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
Table 5

研究ノート
you? In the event two or more lawyers handled the case, please answer with

N

Mean

123

2.11(＊)

 The cost of the lawsuit

Defendants
Defendant Lawyer's
Empathy104

3.08(＊)

126

1.98(＊)

 The time the lawsuit would take

Defendants
Defendant Lawyer's
Empathy105

3.02(＊)

123

1.96

 Prospects of winning the lawsuit

Defendants
Defendant Lawyer's
Empathy106

2.18

 The possibility the anticipatedjudgment or settlement would not be
performed

Defendants
Defendant Lawyer's
Empathy117

2.49(＊)

100

3.60

(＊)

 How the client's family members,
those at the client's workplace, or theclient's neighbors would react

Defendants
Defendant Lawyer's
Empathy

110

3.00

96

3.74

 The possibility the lawsuit would
result in trouble for the client's family members, those at the client's
workplace, or the client's neighbors

Defendants

118

3.12

Defendant Lawyer's
Empathy

99

4.00

p

0.000

respect to the principal lawyer. With respect to each item, please choose thesingle most applicable response.


0.000

Prospects for the lawsuit

Explained wellExplained
somewhat

Can't say one
way or other

Didn't explain
very much

Didn't explain

1

2

3

4

5

0.206

NA

Question 17 Looking back on the results of the trial at the District Court level,
0.000

to what extent were the outlooks of your lawyer accurate? In the event two or
more lawyers handled the case, please answer with respect to the principal

0.001

lawyer. With respect to each item, please choose the single most applicable response.

0.000



Accurate

Somewhataccurate

Can't say one
way or otherNot veryaccurate

Not accurate

1

2

3

4

5

The data shows that laeyers for both the plaintiff and defendant tend not tofully appricate the clients' worry regarding litigation.

Outlook regarding prospects for winningNA

The overwhelming majority of respondents answered Question 16 (1) as either "Explained well" or "Explained somewhat," (specifically, 76.4% of plaintiffs

2. Achievement Assessment

and 78.9% of defendants). Question 17 (3) asks for the litigants' assessment of
their lawyers' accuracy in the initial case evaluation. Although it is certainly

2. 1. Litigants' Assessment of Achievement

possible that "Not accurate" means overachievement vis--vis the initial case

Civil litigants and their lawyers share a common objective, i.e., winning thecase, but there are a wide variety of cases, from strong cases certain to win toevaluation, "Not accurate" usually means the litigants' disappointment, i.e.,underachievement. The results are shown in Table 6.

weak cases certain to lose. Then the common objective should be not just winning the case but achieving the best results. The reference point used to define

Table 6: Outlook Regarding Prospects of Winning"best result" is the initial estimate of the strength of the case.

N

Mean

Plaintiffs (represented)

2.47

214

Defendants (represented)

2.62

114

asked the litigants the following questions.

F-value

1.14

Question 16 To what extent did your lawyer explain the following matters to

p

0.29

In order to measure the achievement assessment by litigants and lawyers, we

58−4−97(名城 '09)( 100 )( 101 )

(名城

'09)

58−4− 96

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート
Table 7: Case Evaluation by Lawyers

There is no statistically significant difference between the plaintiffs and theNdefendants. The litigants' assessment of their lawyers' accuracy in the initial

litigants' achievement assessment vis--vis initial prospects, the assessment isPlaintiff Lawyers
Defendant
Lawyers
F-value

not very positive (such as "Fair" in the "Excellent--Very good--Good--Fair---pcase evaluation is rather lukewarm. If we translate these answers to mean the

Poor--Fail" scale).

Plaintiff Lawyers

There is a positive correlation between Q16 (1) and Q17 (3), which means that

Defendant
Lawyers

the more the lawyers explain the prospects for the lawsuits, the more accurate

Mean

207

2.15

108

3.11

47.08
0.00
N
Mean
N
Mean

200
73.66
102
73.14

the litigants evaluate their lawyers' case evaluation (r=0.373 and p<0.01 for theplaintiffs, r=0.469 and p<0.01 for the defendants).

evaluate their clients' cases slightly weaker than the opponents (plaintiffs). The
assessment of their achievement vis--vis their initial case evaluation of the

2. 2. Lawyers' Assessment of Achievement

plaintiff lawyers and those of the defendant lawyers are almost identical at 73%.
We asked the following questions to measure the lawyers' assessment of

Although there is no scientific method to compare the litigants' achievement

achievement.

assessments in 2.1 and these results on lawyers here, a 73% achievement sounds

Question 7 We next inquire with regard to your views on the outlook for the liti-

much higher than the litigants' "Fair" evaluation.

gation at the time you were asked to handle this case.
 At the time you were asked to handle this case, which side did you feel

3. Customer Satisfaction

was in the stronger position? Please choose the single most applicable re3. 1. Litigant Satisfaction
sponse.
My client's side On balance,
was stronger my client's side Can't say one
was stronger
way or otherOn balance,
the other side
was stronger

The other side
was stronger

4

5

If and to what extent are the litigants satisfied with their lawyers' performance? This is the most important issue in the lawyer-client relationship. We
asked the litigants the following question.

1

2

3

NA

Question 22 To what extent do the following evaluations apply to the lawyer
 Reflecting on your views on the outlook for the litigation at the outset,

who actually worked on your case? In the event two or more lawyers actuallyto what extent did the results of the trial in the first instance achieve

worked on the case, please answer with respect to the principal lawyer. With

those views? Please answer in terms of percentage.

respect to each item, please choose the single most applicable response.

percent achieved
The results are shown in Table 7. The plaintiffs' lawyers evaluate their clients'
cases stronger than the opponents (defendants), while the defendants' lawyers
58−4−95(名城 '09)( 102 )



Understood the substance and background of the case well

Sincerely sought to understand your feelings

 Explained the legal aspects of the case in an easy-to-understand fashion( 103 )

(名城

'09)

58−4− 94

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート Gave thought to a good resolution of the dispute for all parties, includ-

Table 9Overall Satisfaction

ing the other side
Took into consideration family members or other concerned persons
who were not parties to the lawsuit[Answers to - used the following scale]
Applies well

Appliessomewhat

Can't say one
way or other

Introduce the Lawyer to Friends/Relatives

Plaintiffs(represented)

N

230

223

Mean

2.27

2.66

Defendants(represented)

N

123

116

Mean

2.24

2.53

Does not apply
very much
Does not apply

 Are you satisfied with the lawyer? Please choose the single most appli1

2

3

4

5

NA

The results are shown in Table 8. We did not find any statistically significant

cable response.
You aresatisfied

You are some- Can't say one You are somewhat satisfied way or other what unsatisfied

You areunsatisfied

differences between the plaintiffs and the defendants in any of the questions.
1

Although the litigants evaluate their lawyers relatively well on questions (1)

2

3

4

5

NA

[understanding the case], (2) [understanding the client's feelings], and (3) [ex-

 If a friend or relative asked you to introduce a lawyer, would you intro-

planation of the legal aspects], they gave a rather lukewarm evaluation on ques-duce that lawyer? Please choose the single most applicable response.

tions (4) [good resolution for all parties] and (5) [considering nonparties].

You would
introduce

You probably Can't say one
You probably
You would
would introduce way or other would not introduce not introduce

We further asked the following question to measure the litigants' overall sat1

isfaction.

2

3

4

5

NA

Question 23 What is your overall evaluation of the lawyer who actually worked

The results are shown in Table 9. There is no statistically significant differ-

on your case? With respect to each of the items below, please choose the single

ence between the plaintiffs and the defendants. The litigants are relatively sat-most applicable response. In the event two or more lawyers actually worked

isfied with their lawyers. As to question (2), the litigants are lukewarm at beston the case, please answer with respect to the principal lawyer.

with regard to introducing their lawyers to friends or relatives.
3. 2. Lawyers Assessment of Client Satisfaction

Table 8
 Understood  Sincerely
the substancesought toand background understandof the case well your feelings

 Explained
the legal
aspects of thecase in aneasy-tounderstandfashion Took into
 Gave thought
consideration
to a good resofamily members
lution of theor otherdispute for allconcerned
parties,
persons who
including thewere not parties
other side
to the lawsuit

We asked the lawyers the following questions in order to measure their estimate of their clients' satisfaction.
Question 15 We next inquire with regard to your relationship with the client.
Overall, to what extent do you believe your client was satisfied with

Plaintiffs(represented)

N

225

227

224

211

186

Mean

1.95

2.10

2.21

2.39

2.67

Defendants(represented)

N

120

122

119

116

113

tiple clients, please choose one principal client and answer with respect to

Mean

1.99

2.11

2.26

2.50

2.59

that client. Please choose the single most applicable response.

58−4−93(名城 '09)( 104 )

your work on the trial in the first instance? In the event there were mul-

( 105 )

(名城

'09)

58−4− 92

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers

研究ノート

Table 10

Plaintiff Lawyers
Defendant Lawyers

Q15̲1. Client Satisfaction
Assessment199

Q15̲2. Establishing Trust
Relationship
201

Mean

1.85

1.76

N

107

Mean

1.75

N

You believe
You believe thethe client
client was somewas satisfied
what satisfied
1Table 112

Can't sayone wayor other
3

N%

Client's initiative

37

18.8

On balance, client's initiative

27

13.7

Same degree for both

57

28.9

108

On balance, lawyer's initiative

40

20.3

1.61

Lawyer's initiative

36

18.3

Client's initiative

31

29.5

On balance, client's initiative

13

12.4

Same degree for both

27

25.7

On balance, lawyer's initiative

23

21.9

Lawyer's initiative

11

10.5

Plaintiff Lawyers

You believe theYou believe
client was some- the client waswhat unsatisfied
unsatisfied
4

Defendant Lawyers

5NA

To what extent were you successful in establishing a relationship of

took the initiative, you the lawyer or the client? Please answer in terms

trust with the client? Please choose the single most applicable response.

of degree. In the event there were multiple clients, please choose one prin-

Successful

Somewhat
Successful

Can't say one
way or otherSomewhat
unsuccessful

Unsuccessful

cipal client and answer with respect to that client. Please choose the single
most applicable response.

1

2

3

4

5

NA

Client's
initiative

On balance, client's initiative

Same degree
for both

On balance, lawyer's initiative

Lawyer's
initiative

1

2

3

4

5

The results are shown in Table 10. We did not find any statistically significant differences between the plaintiff lawyers and the defendant lawyers. As toNA

their clients' satisfaction, lawyers are very confident that their clients were satisfied with their performance. The lawyers are also quite confident that they

The mean values are 3.06 for the plaintiff lawyers and 2.71 for the defendant

have established relationship of trust with their clients. Compared to the clients'

lawyers. The difference is 5% significant (p=0.038). The plaintiffs and their law-assessment of satisfaction in 3.2 above, lawyers seem to be overconfident.

yers take almost the same degree of initiative, while the defendants take more
initiative than their lawyers.

4. Division of Labor

4. 2. Legal Construct Initiative

4. 1. Initiative in Decision to Sue or to Deny the Claim
We asked the lawyers the following question in order to measure the initiative
We asked the lawyers the following question in order to measure the division

distribution between a lawyer and his/her client in constructing the legal claim.

of initiative between a lawyer and his/her client in deciding to sue (plaintiff) or

Question 22 How did you decide with respect to legal assertions, claims, andto deny the claim (defendant).

counterarguments? Please choose the single most applicable response.

 At the time of filing the lawsuit/At the time of filing the response, who
58−4−91(名城 '09)( 106 )

1 You the lawyer decided almost entirely( 107 )

(名城

'09)

58−4− 90

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
Table 12

Plaintiff
Lawyers

Defendant
Lawyers

研究ノート
Question 33 [to litigants] How did you find evidence/witnesses and investigate

N%

1 You the lawyer decided almost entirely

61

29.5

2 You primarily decided, in consultation with the client

126

60.9

3 The client primarily decided, in consultation with you the lawyer

5

2.4

4 The client decided almost entirely

1

0.5

5 Other

14

6.8

1 You the lawyer decided almost entirely

19

17.4

2 You primarily decided, in consultation with the client

86

78.9

3 The client primarily decided, in consultation with you the lawyer

2

1.8

4 The client decided almost entirely

1

0.9

5 Other1

0.9

the facts? Please circle all responses that apply.
1 You investigated the facts and evidence/witnesses based on your own
judgment
2 You investigated the facts and evidence/witnesses yourself, based on instructions from the lawyer (s)3 The lawyer (s) investigated the facts and evidence/witnesses for you
4 You did not investigate the facts and evidence/witnesses
5 N/A
The results are shown in Table 13 and Table 14. The initiative in evidence

2 You primarily decided, in consultation with the client

gathering is primarily on the clients' side.

3 The client primarily decided, in consultation with you the lawyer
4 The client decided almost entirely
5 Other (Please explain:

Table 13)Lawyers' Answers
N

%
45.97

N

97
211

Defendant Lawyers
N

35
113

30.97

Plaintiff Lawyers

116
211

54.98

N
Defendant Lawyers
N

66
113

58.41

Plaintiff Lawyers

85
211

40.28

N
Defendant Lawyers
N

31
113

27.43

Plaintiff Lawyers

12
211

5.69

N
Defendant Lawyers
N

6
113

5.31

Plaintiff Lawyers

2
211

0.95

N
Defendant Lawyers
N

8
113

7.08

The results are shown in Table 12. Decisions on legal matters are predomiPlaintiff Lawyers

nantly on the lawyer's side, which is not surprising. What is the use of a lawyer
if this was not the case?
4. 3. Evidence Gathering Initiative

1 You primarily utilized evidence prepared by
the client

2 You gave the client detailed instructions andhad the client find evidence

We asked both the litigants and the lawyers the following questions in order
to measure the initiative distribution between a lawyer and his/her client with

3 As lawyer, you yourself found evidence

regard to the evidence gathering.
 [to lawyers] How did you assemble evidence? Please circle all applicable
4 Other

responses.
1 You primarily utilized evidence prepared by the client
2 You gave the client detailed instructions and had the client find evidence

5 You did not find evidence

3 As lawyer, you yourself found evidence
4 Other (Please explain:)

5 You did not find evidence
58−4−89(名城 '09)( 108 )

( 109 )

(名城

'09)

58−4− 88

Attitude, Evaluation, and Decision-Making by Civil Litigants and Their Lawyers
Table 14

Litigants' Answers

evaluation is rather lukewarm. We found that the more the lawyer explains the
N

%
37.04

N

90
243
42
137

30.66

N

As to the lawyers' assessment of their achievement vis--vis their initial case

79
243

32.51

evaluation, the response from the plaintiff lawyers and the defendant lawyers

N

41.61

N

57
137

19.34

N

47
243
10
137

7.30

N

were satisfied with the services provided. The lawyers are also quite confident

21
243

8.64

that they have established a relationship of trust with their clients. Compared

N

7.30

N

10
137

Plaintiffs
1 You investigated the facts and evidence/
witnesses based on your own judgment

2 You investigated the facts and evidence/
witnesses yourself, based on instructions
from the lawyer (s)Defendants
Plaintiffs
Defendants
Plaintiffs

3 The lawyer (s) investigated the facts andevidence/witnesses for you

Defendants
Plaintiffs

4 You did not investigate the facts andevidence/witnesses

研究ノート

Defendants

prospects of the lawsuits, the more accurate the litigant evaluates their lawyer's
case evaluation.

are almost identical, i.e., 73%, which appears to be higher than the litigants'
evaluation.
As to customer satisfaction, the lawyers are very confident that their clientsto the clients' assessment of satisfaction with the lawyer performance, lawyers
seem to be overconfident.
As to the division of labor in initiating litigation or denying the claim the

5. Concluding Remarks

plaintiff's claim, the plaintiffs and their lawyers take almost the same degree of
initiative, while the defendants take more initiative than their lawyers. As to

The unique features of the lawyer-client relationship are (a) a lawyer andthe division of labor in legal construction, the decisions as to legal matters are

his/her client share a common objective of winning the case; and (b) a lawyer

predominantly made by the lawyers. As to the division of labor in evidence

and his/her client have a unique bilateral asymmetry of information, i.e., a law-gathering, the initiative is primarily on the clients' side (with lawyer's instruc-

yer has overwhelming information on the law whereas his/her client has over-tion).

whelming information on the facts and evidence of the case. From this point of

We would like to make caveat at this point with regard to our data and analy-

view, we can explain the division of initiative and the division of labor between

ses. Due to the low rate of return, we were not able to do the matching between

the litigant and his/her lawyer.

the litigants and the lawyers. Therefore there remains the possibility that our

As to the factors considered in decision to sue or to deny the claim, we findanalyses and results may have only heuristic values.

some discrepancies between the lawyers and the litigants how such factors areprioritized. The data show that both the plaintiff and defendant lawyers' understanding of the clients' worry at the outset of the litigation process tends to be
imperfect and that the lawyers tend to understimate their clients' level of concern.
The litigants' assessment of their lawyers' accuracy in the initial case58−4−87(名城 '09)( 110 )

( 111 )

(名城

'09)

58−4− 86