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Saturday, Nov. 4, 2006
HANDS-ON APPROACH BRINGS BENEFITS, HEADACHES
Law schools grope to create better lawyers
Although many legal professionals think the drive to create American-style law schools is playing a key role in making better lawyers, others are not ready to embrace the new model.
Takeshi Hagiwara likes his job as a criminal lawyer, saying it's his duty to protect people's constitutional rights.
These days, that mission includes teaching aspiring lawyers at Omiya Law School in Saitama Prefecture, where he tries to bridge the gap between the theory and the practice of law.
In addition to the cases he takes on his own, the 51 year-old instructor volunteers to take extra cases from colleagues, who are required to serve as on-call lawyers, providing free legal counsel to people in police custody. This provides plenty of material for his Criminal Case Clinic course.
"If I have access to more cases, I may get one that might be good for my students" to learn how lawyers work, Hagiwara said.
So far this year, he and his students have already worked on behalf of nine clients who were arrested or prosecuted for crimes that included assault, fraud and murder. The defendants agreed to have the students be a part of their defense team, Hagiwara said, adding that the students have all signed a confidentiality agreement with the law school and are very dedicated.
Students assist with writing bail requests, conducting interviews with clients and their families, investigating crime scenes and devising legal strategies for defendants. They are now working on a case that will be heard under the new pretrial meeting system, a reform aimed at speeding up trials.
Hagiwara's class is an example of the "clinical" approach to legal education that took hold in U.S. law schools about 40 years ago. This approach stresses giving students hands-on experience practicing law under the supervision of an attorney.
But unlike in North America, where many practicing lawyers serve on law school faculties and thus have a hand in both legal theory and working actual cases, this system is only two years old in Japan, leaving many bugs to be worked out.
Anyone in Japan can take the national bar exam, which is extremely difficult to pass. On average, only 3 percent of the people who take it become members of the bar.
Those who do pass undergo an additional 16 months of training at the Legal Training and Research Institute, run by the Supreme Court.
The government is in the process of overhauling the judicial system to make it easier for the public to understand and to ensure an adequate supply of well-trained legal professionals.
One major change has been to make the new university law schools central to the legal education system.
Whereas in the past, anyone who passed the bar exam and took the 16-month postexam course qualified as a lawyer, starting this year, would-be lawyers must study at law school for two to three years to be eligible to take the bar exam. After 2011, those who have not attended law school must pass both the bar exam and a supplementary exam to qualify as a lawyer. For law school graduates, the postbar exam course will be shortened to 12 months.
The goal of the new law schools is to teach practical skills and challenge students to think critically, and the clinical approach is one way they try to do this.
According to a Waseda Law School survey in September, 56 out of 74 law schools in Japan offer clinical legal education courses, but the content varies and most focus on civil and family court cases. Law schools are still experimenting with their curricula as they grope for a way to introduce the clinical approach.
Some law schools, including Omiya and Waseda in Tokyo, let students play an active role, allowing them to give legal advice to clients. Others are more cautious, simply having them sit in with lawyers as they provide counsel.
Students by and large seem happy with their courses. "When you meet a suspect, you really want to help the person and try to come up with the best possible tactic" for defense, said Tatsuya Yonetani, 43, owner of a cram school who is in his third year at Omiya Law School.
Yonetani said he will never forget the time Hagiwara pointed out a mistake he made on a request for bail.
"When you are reading law books, it's just knowledge, but when it's applied in a real case, you never forget the mistake because it becomes so clear why you were wrong," he said.
Instructors are also learning from their students.
"There have been times that I was surprised by the great suggestions made by the students," Hagiwara said. "Lawyers get too used to what they do and can fail to explore new possibilities, but the students see the cases with fresh eyes."
Hagiwara said the quality of his defenses has improved thanks to the students' involvement.
But some are throwing up roadblocks to the program, arguing that because law students are not full-fledged legal professionals, their access to information should be limited.
Prosecutors in Saitama twice rejected Hagiwara's request for photocopies of documents disclosed during pretrial meetings on grounds that showing the information to students violated criminal procedure laws, which prohibit use of documents for purposes not related to litigation.
Takashi Takano of Waseda Law School had the same thing happen to him.
Both lawyers had to copy the documents by hand and read the information out loud to the students.
Hagiwara said he was allowed to copy documents for use by students until this summer. Then in June, Hideo Takasaki, a prosecutor at Tokyo High Prosecutor's Office, wrote in a Justice Ministry journal that documents for pretrial meetings cannot be used for teaching because it is violates the law and the privacy rights of suspects and others.
Takasaki argued that law school students are not the same as those at the Legal Training and Research Institute. The trainees are allowed to see the documents because they have passed the bar exam and need to know procedures.
Takasaki told The Japan Times that he wrote the journal article after a number of prosecutors began raising objections to the disclosure of documents to law school teachers and students. He said he consulted with many people and came to the conclusion that the criminal procedure law should be interpreted as barring anyone other than lawyers and trainees from having access to trial documents.
"The law doesn't say anything about sharing information that lawyers teaching at law schools have seen or heard (during the pretrial meetings), so that information can be used at their discretion," Takasaki said.
He declined to give an opinion on clinical legal teaching, saying he was not in a position to comment.
In late September, Omiya Law School sent a letter to the Saitama District Prosecutor's Office asking it to allow Hagiwara to copy documents, saying the new interpretation of the rules was affecting not only his courses, but the entire legal education system. In early October, he received a formal rejection.
Many lawyers say Japan must develop guidelines on how students can participate in cases. U.S. states have such rules.
But a bigger worry for law schools is that students could lose interest in the clinical approach and return to an emphasis on book learning because of the pressure to pass the revamped bar exam.
The Justice System Reform Council predicted in a 2001 report that 70 percent of law school students would pass the bar exam. In fact, law schools had an average pass rate of only 48 percent this year. Some schools failed to produce even a single graduate who passed the bar.
"There's a gap between the goals and the reality of law schools," said Takao Suami, a law professor at Waseda Law School.
He said the number of people applying to law schools is falling because people don't want to risk gambling on a new approach to legal training. Some students are already complaining that clinical courses are more time-consuming than conventional lectures.
Suami believes the government should set a minimum passing score for the bar exam, rather than ranking students by their scores and determining a cutoff line. That way, passing the bar exam would itself qualify people as lawyers.
Meanwhile, he said, lawyers should continue sharing their expertise with students. "It's important that lawyers continue to work on this program because it is an important part of law school education."