COMMENTARY: Deposition, Japanese style can be a road less traveled

By Greg Stobbs Having practiced patent law for more than 30 years, I was quite familiar with taking a deposition in someone's law office. You arrive at more or less the appointed time, pull notes from your briefcase and begin the systematic process of questioning the witness, or distracting your opponent from doing so, until all the questions have been asked and answered or someone stomps out of the room threatening to call the judge. But when I sat in the waiting room at the Japanese embassy in downtown Detroit, waiting to get my official deposition visa to permit me to participate in a deposition to be held at the Osaka consulate, I began to appreciate that this would be no ordinary judicial process. To begin with, Japanese law strictly prohibits depositions of its citizens on Japanese soil, except through a carefully prearranged venue at the U.S. embassy or consulate. It was not my party, so the arrangements to schedule the deposition room at the U.S. consulate in Osaka were made by our adversary. I am told you must schedule the room months in advance. To get the special deposition visa I had to surrender my passport for processing. That worried me, of course. What if it gets lost, or stolen to be sold on the black market? Thankfully, my passport came back as promised. However, permanently affixed to one of its pages was a deposition visa, good for 15 days. I was told to present this to the U.S. consulate on the day of the deposition. No visa, no entry. That was the rule. I was not traveling alone. In addition to our witness, whom I would be defending, our entourage included two other members of my firm plus our specially commissioned "checker translator." Because the deposition would be conducted in two languages, English and Japanese, we brought our own translator to check the accuracy of our adversary's translator. This was not a case of our side being anal. Rather, it is the custom. The party requesting the deposition is responsible for providing the official translator, and the responding party brings its own, to ensure the record is accurate. Those familiar with U.S. depositions know that sooner or later the attorneys will get into an argument over some procedural difficulty and spend pages of the court reporter's time arguing back and forth. That happened here as well. However, during our tête-à-tête, I noticed that the court reporter was taking none of it down. I asked the reporter and was told that they never transcribe the attorney arguments. I suppose that is a breach of some legal canon but when you're halfway around the world in a country that eats pickles for breakfast, you get a strong sense that asking the reporter to break custom would be futile. Speaking of pickles for breakfast, that is just a small taste of Japanese cuisine. The flavors expressed in Japanese food are really not so shocking-you could almost call the food bland with a touch of soy; but the textures are off the charts. In a single meal you can be offered yama imo, a slimy potato paste that slides the full length of your throat and simply cannot be swallowed. Follow that with a delicious shrimp head, eyes attached, that has the texture of a burned potato chip that simply will not melt in your mouth. On my most recent trip I was offered a raw, glow-in-the-dark firefly squid that tasted a bit like sweet vinegar, and a dried stingray wing that was like chewing the tongue of an old leather shoe-with mayonnaise, of course. But I digress. Back at the deposition, our room was feeling pretty crowded. Counting my side and the opposing side there were six or seven of us crammed into this tiny room. The table was so small that I could not open a file folder without the contents spilling onto the floor. Fortunately, my prepared notes had been bound at the top. The deposition proceeded at a snail's pace. By custom, everyone waits as the English question is translated into Japanese; the witness formulates his answer, giving it in carefully worded Japanese as the U.S. attorneys wait to hear the translated answer. If there have been any discrepancies in translation, the checker translator pipes up, essentially conducting a friendly negotiation with the official translator. Usually they can agree, but if not, both translations are placed on the record. It was nearing 4:30 and I could tell our adversary had a lot more ground to cover. We were told that the deposition would stop at exactly 4:30 and they were not kidding. At precisely 4:30, a U.S. Marine in full dress uniform opened the door of our deposition room and announced that the deposition was at an end. Our adversary informed him that he had more questions. Without a moment's hesitation, the Marine corrected him and informed that his questioning was finished. Everyone rose and promptly walked out, passing back through the metal detectors we had traversed upon entry, where we then spilled back into a lively twilight street filled with early evening Japanese nightlife. I have traveled to Japan dozens of times. I figure I've lived in Japan for a total of six months, in 7- to 14-day increments. Over that time I have learned that if there are two possible ways to do something, we do it one way and they the other. Books open from left to right; men's room toilets automatically flush before you use them, not after; when staying at someone's home the bath is taken before going to bed, not in the morning as you would a shower; soup is served as the last course, not as the appetizer; construction workers wear rubber boots with the big toe free and separately protected, like winter pajamas in which you might dress a toddler. But this deposition experience wins my prize as the most alien experiences ever. Compared with the typical U.S. deposition, my notes looked the same; my attire was quite the same; the seating arrangements, although cramped, were basically the same. Yet here we were on an alien planet, under some embassy bell jar, trying to wind the wheels of justice clockwise, while outside life buzzed in counterclockwise orbit around ancient customs we could not begin to imagine or ever understand. At a very basic level, we all thought we were there to take a deposition. In fact, we were there to take a Japanese deposition, and that, like a road less traveled, made all the difference. Was our deposition outcome successful? I would have to say, from our vantage point, "yes." We had our witness well prepared. Our adversary obtained little useful information and earned no zingers that could be used at trial. Perhaps this deposition was an attack our adversary had to make; but in hindsight, I think he got very little value for the considerable effort. I hope he enjoyed the pickles. -------- Greg Stobbs is a principal with the intellectual property firm of Harness Dickey in Troy. His current practice includes representing clients in Europe, Korea, China and Japan. Through adult studies, he has acquired intermediate level fluency in both spoken and written Japanese language. Published: Fri, Nov 21, 2014