Chapter 2. Appendix: The records read

Can I ask for clarification in court when I do not understand the intent of the question?

We review together the sentence of the question and the related flow of conversation that appear in the practice materials.

Understanding that promptly confirming the intent of the question is the process of making clear the parties to the litigation.

An answer continued without confirming the intent of the question may be recorded as content that diverges from the question.

In this practice material, which part of the question is still unclear?

We revisit the material when the intent of the question becomes clearer or the related record of the conversation is supplemented.

If I answer a question asking for the reasons behind my agreement, could the premise of that question be read as a deemed admission?

We need documentary evidence confirming the exact wording of the question and the passages that the question takes for granted. We also examine how receipt, discussion, and agreement in relation to each of those passages were recorded.

It reads as a question asking for the reasons behind my agreement, supported by documentary evidence that can be verified.

It can be read as a question that asks for reasons while taking for granted that passages not yet verified were in fact agreed to.

Before I explain the reasons I was asked for, will my answer sound as though I had accepted something?

Once I identify the passages that the questioner appears to treat as agreed, or explain them as premises that were assumed, we review the scope of my answer again.

How should a short answer given in oral argument be connected to the preparatory brief?

We check the record of the questions and answers exchanged in oral argument together with the contents of the preparatory brief submitted earlier.

Answering briefly in step with the flow of the written submissions can make the state of the litigation clear.

Facts not stated in the written submissions may not be asserted in a setting where the opposing party is absent.

How can we tell which part of the written submissions a short answer connects with, and that it answers the presiding judge's question?

We revisit the matter if the meaning of the presiding judge's question does not become clear, or if words not found in the written submissions remain in the record.

Would a statement that the document was duly authenticated also constitute an admission of the facts stated within it?

We consider together the record of argument setting out the scope of the question and the object of the answer, along with materials concerning the original of the documentary evidence and its source.

Taken as a statement on authentication only, the facts within the document are regarded as still requiring proof.

There is also room to treat the matter as a deemed admission extending to the facts within the document, so that proof is unnecessary.

Where should the line be drawn between a statement on authentication and a statement on the facts?

Where the intent to dispute the facts within the document becomes clear in the subsequent argument, the scope of what was admitted is examined again.

Could the words used in court be read with a meaning different from the meaning given to them under law?

The expressions used in court and the factual circumstances to which those expressions refer are established.

There is room to treat familiar words as operating with the same meaning in procedure as well.

Unless the procedural meaning is established, there remains a possibility that the purport of the explanation will differ.

What is the meaning that has been established, and what is the meaning that still has to be established?

If we learn that the same words are used with a different meaning in procedure, we examine the matter again.

In a trial with many victims, how are statements of fact told apart from statements of opinion?

In these practice materials, the victims' applications, the notices to attend and the records of statements already given are checked, along with whether each statement concerns facts or is an opinion on the extent of harm and on punishment.

One interpretation holds that a victim's statement in court is chiefly evidence that brings out the facts of the offence.

Another interpretation holds that a victim's statement in court is a procedure for conveying an opinion on the results of the harm and on punishment.

Where should the standard for telling a statement of fact from a statement of opinion be found?

The matter is looked at again if a new victim applies or the scope of a statement already given changes.

At a hearing the other party does not attend, how do the deemed statement of papers and the effect of deemed admission overlap?

In these practice materials, whether each party attended the hearing and the contents of the papers exchanged are presented together.

One view holds that the papers filed are treated as stated, so the shape of the dispute stays as it was.

Another interpretation holds that because the absent party said nothing, it is deemed to have admitted the facts the other party asserted.

Where they overlap, how should the part treated as a statement be told apart from the part treated as an admission?

The conclusion is looked at again if attendance or the method of service differs.

If the words heard and the words remaining in the written record differ, what will be verified?

We look together at the testimony of the opposing party heard in court and the presiding judge's questions, along with what is written in the written record. The state of the record verified through reading aloud or inspection is also examined together.

There is an interpretation to the effect that if you take notes on the flow as you listen, it naturally leads on to a request that the written record be read to you or shown to you.

Where the words remembered and the words remaining in the written record appear to diverge, there is an interpretation to the effect that an objection is raised and the matter moves toward the substance being written into the written record.

Does understanding the whole question mean that verification of the written record has been completed?

When a passage remembered differently from what is written in the written record is confirmed, the matter is looked at again. The traces left by reading aloud or inspection, and by the purport of the objection, are also examined together.

Can the meaning of the answer be corrected when the memory differs from the record?

We examine together the passage of the answer written in the record, the expressions that differ from memory, and the materials supporting them.

Even where the expression has been refined, the record appears to have preserved unchanged the scope of what was admitted in the answer.

This may be a record in which conditions or qualifications were dropped, so that the scope recognized as the meaning of the answer has changed.

What concrete differences can be explained by other materials rather than relying on memory alone?

When a fuller record or an official explanation concerning the passage is obtained, we examine the difference again.

Will the degree of certainty and the conditions attaching to a statement survive in the record after it has passed through interpretation?

We examine how the original expression and the content conveyed through interpretation, together with the conditions that distinguish the meaning, appear in the record.

The degree of certainty and the conditions attaching to the original statement may be preserved even if the expression is changed.

A statement that was tentative or conditional may have been recorded as though it were a definitive answer.

Among the expressions that differ after interpretation and recording, which difference changes the meaning?

When the meaning of the interpreted content becomes clear, or an omitted condition is confirmed, the meaning is compared again.

At a hearing held via videoconference, could the portion where the connection was lost be treated as a statement made while in attendance?

The hearing and the portion that was lost are examined from the remaining record. The decisive issue is whether participation through a videoconference device accords with the manner prescribed by law.

A statement delivered before the connection was lost may have some basis for being treated as a statement made while in attendance.

The silence following the lost portion cannot definitively be taken to mean that the statement reached the other party.

What can be used to distinguish between what I said and what actually reached the other party?

Where the listener identifies the portion they heard, or where the connection status is verified, the gap in transmission is re-examined.

What support can one ask for when it is difficult to exchange words in court?

In practice materials such as this one, we check interpretation, statement assistance, methods of participating via screen, and guidance on the structure of litigation.

When communication does not work through, or when there is difficulty hearing or speaking, participation methods such as interpretation and text first appear as the problem.

When the distance is far and speaking face to face is burdensome, and when resources are short, participation via screen and the structure of litigation emerge as a separate problem.

What more must be examined before it can be determined which assistance follows from which difficulty?

We look again when the support guidance or the participation environment changes.

How does a party statement filed in advance relate, in the record, to what the party says when examined in court?

In these practice materials, the party statement filed in advance, the examination record made in court, whether the parties were confronted with each other, and when and from whom each statement came are checked together.

One interpretation holds that a statement filed in advance is preparatory material for an efficient examination, so the record should be read with the testimony confirmed in court at its centre.

Another interpretation holds that a statement filed in advance is served on the other side and becomes a starting point for the dispute, so it must be read side by side with the testimony given in court.

When the paper filed in advance and the testimony given in court seem to diverge, by what standard should the facts be settled?

The matter is looked at again if the parties are confronted with each other in court, a new examination record is made, or a dispute arises over how the statement was prepared.

How does a written statement that substitutes for testimony differ from a written statement that assists examination?

To examine this question, we look together at the purpose of the order to submit, the author of the written statement, the process of its service on the opposing party, and the course of the in-court statement.

One view is that a written statement ordered in place of appearance replaces appearance and testimony in court, so it can be considered without a separate examination.

Another view is that even when a written statement in place of appearance is produced, the witness may still be called to appear and testify if the opposing party objects or the court finds it necessary, so the writing alone does not end the matter.

What distinguishes which written statement is treated as one that substitutes for appearance?

When the opposing party objects, or the court orders the witness to appear and testify, we look at the matter again together with what followed.