My Court Case in Tokyo

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There was much less gavelling than I had imagined

An extended diary entry about the time I sued some companies

The Noisy Foundations

Around January of 2009, one of the restaurants near my apartment installed a new ventilation system. A loud one. My apartment is on a small road which is more like an alley, and opposite my place are the backs of a bunch of restaurants. They all have fans and they all have occasional loud parties, but for the most part they never made enough noise for me to even notice them.

Now that this one restaurant had changed their fan, I was now keenly aware of their business hours, which, I had never known before, was every night from 5 PM to 5 AM. The noise level was like having someone run a vacuum cleaner just outside your door. I wouldn't say it was crazy loud, it was just relentless. And anyone who has experienced problematic noise issues can tell you that persistence is one of the vectors by which a sound can aggravatingly burrow into your brain.

Then in February of that same year, the city began the reconstruction of a community centre that was behind my apartment on the opposite side from the restaurants. They sent notices in the mail, so I knew it was coming. I had lived near constructions before, and it was never a problem those times, so I just glanced at the notices without much more thought. But this turned out to be unlike any other construction because of the all important difference that it was right beside me. I don't mean close, I mean that one edge of their construction site was overlapping the property line of the building I lived in. Sometimes they were digging literally underneath my building, to access pipes or put in foundations or whatever. When I stepped out my front door, I could reach out without stretching at all and touch the plastic sheeting they put up around the site. What I previously defined as a construction "near me" were revealed to be completely irrelevant experiences.

Also, this construction, of a new eight story building, was not like the half year enterprises that a lot of constructions are. This turned out to be over two years of building a state of the art earthquake proof city building with extra strong and high tech foundations to be used as a refuge area should, say, North Korea nuke a nearby neighbourhood. And I didn't realize what it would mean to my sanity that they would be working Saturdays and holidays. They said they'd be starting at 8 AM, but they didn't mention that with the trucks and preparation, the noise would actually start at seven or earlier. And whenever they needed to, like when they were pouring concrete, which I never before knew had such dire noise implications, the "agreed upon" schedule would go out the window and they might stay as late as 10. Often the schedule was only loosely adhered to in any case, so that some guy might be cutting metal pipes or banging the shit out of something until whenever he was done cutting or banging.

Between the construction and the restaurant, I had pretty much a full 24 hours a day of noise. The restaurant turned on their fan before the construction ended, and the fan would turn off maybe about a half hour or an hour before the construction kicked in. A lot of the noise was unbelievably loud. Have you ever heard someone breaking massive cement boulders with industrial machinery two strides from your front door? Or heard a three story tall drill make holes for foundations literally within arms reach of your post box? It's loud, dude. Real loud. And there were unexpected knock on effects. For instance, I had this metal thing on my door that catches mail that comes through the mail slot, and I had to take it off because various construction activities would make it vibrate with a weird noise.

You might think that a ventilation duct isn't loud enough to be annoying, or that construction noise isn't constant enough to be that disruptive. I didn't think so either at first. With the ventilation noise, I thought maybe it was just seasonal. Maybe when it got warmer they'd turn off the heater or something. With the construction, I assumed that whatever phase of work they were on would eventually end, and the next phase wouldn't be so bad. I thought, hoped, things would change, the annoyance would be temporary, and I'd go on with life. The first time I heard them busting cement blocks, I literally laughed, assuming it to be an anomaly. Surely nothing else would be as loud and extreme as that.

That's how it goes with persistent noise. At first you just shrug it off, without knowing better, you just assume it'll go away. Then after a while, you kind of laugh about it. Man, those neighbours sure are crazy noisy, right? And then you start to get a little concerned. Well, it's getting annoying, but, I'm sure it won't last, so I'll just suck it up. And then it doesn't go away. Whatever your limits of patience are, you get worn down. I just want to sleep, is that so much to ask in life? The construction was it's own special kind of annoyance. It would come and go in random waves, which had it's own implications for psychological torture. It would be quiet for a while, and I'd think, okay, maybe I can do some work, which I often did at home, being freelance. Anyway, it would always seem like just when I settle in and start working, then suddenly some drill or something would kick in so loud that I couldn't even hear music in my own place if I played it in a futile attempt to drown out the construction. The random unpredictability made it impossible to ever relax or plan around it. The effect compounds, as the lack of sleep and focus makes it harder to endure the next day.

And then a second construction began on another side of my house. Holy fuck!

Dialogue is good, right?

So what to do? Some people might move, but, in Tokyo when you have to pay six times the rent to move into a new place, have a guarantor, be turned down for being a foreigner, and other considerations, that's not a casual option. I figured I'd go and talk to the various companies involved and see what the deal was. Find out how much more annoyance there is and see if I could get them to do anything about it.

I went to the city office and spoke to a person who was in some way responsible for the construction of the community centre, and they assured me that the first little while was going to be bad, but that it would get better. Soon, the large outer shell of the building would be done, I was told, and when it was mostly interior work, I would hardly notice it. I naively believed them. After nothing changing and a few more interactions, though, I realized that they would just say anything to make me go away. It never got better. The reality is that it doesn't matter if it's some massive heavy machinery or one guy with a hammer. One of the most annoying noises of the whole experience was one day when this one guy had a small hand held pipe cutter with a rotary blade, and he was going through thin metal pipes not too far from my door.

The amount of noise generated when you're that close to a construction site varies in its qualities, but is unified in its impact. I went back and spoke to the people at city hall again later, this time with a polite letter to make my concerns clear and specific. The woman in charge said that maybe what they could do was put some sound proofing around my apartment. I'm no physicist, but I'm pretty sure that sound can go around corners. So, I knew that short of an entire cube of hermetically sealed soundproofing around my whole building, this was more of a gesture than a solution. Still, it made me feel better to at least have some dialogue, and to know that they at least gave enough of a shit to try something.

Next, I spoke to the second construction, which was of a small 3 story apartment building. They were a little accommodating. They agreed not to drive trucks in front of my apartment before 8:30. There was a street light right in front of my building which forced trucks to do all sorts of tricky manoeuvres to get around it within the constraints of the very narrow street. You know the beeping noise trucks make when they back up? You have never heard it as much as I did, every morning at 8:30 as they played life size Tetris directly below my window.

Then I spoke to the restaurant. That was a multi stage affair. First I spoke to some waiter. I really didn't think it would be such a big deal. How hard could it be to fix or replace a fan? They said they would check into it. Nothing happened, so I spoke to a manager. And another manager after another delay. They were very nice, they always seemed sympathetic, but nothing ever actually got done. Then one day two guys came to my place with a case of beer and an offer that I could go and have free drinks at their bar anytime, but that they couldn't do anything at all about the fan. They said it cost a million yen to repair (roughly 10 thousand US dollars), and that was simply impossible for them to afford. I refused their offers, because what I wanted, needed, was sleep, and I don't know if they could provide enough alcohol to make me black out every night. Also, I just didn't believe them. A million yen to replace the whole ventilation system, sure. But to just tweak or repair the fan so it's less noisy, maybe redirect the air flow somewhere else? Come on.

Despite talking to all the relevant parties, one fact that was the same between all of them emerged. I had no power, no authority, no leverage whatsoever to demand anything. Whether it was gestures of sound proofing or beer, there were no actual solutions being offered.

Snapping Point

Two events caused me to snap.

One was a set of holidays in September of 2009, known in Japan as "Silver Week". Keep in mind that by this time I had a little over half a year of non stop noise, ranging from persistently annoying to apartment shakingly loud. I found myself looking forward to simply being at home without construction noise for these particular four days, Sunday through Wednesday. Like a frog in boiling water, the constant noise was making me a little crazy under the surface without me realizing the scale of it. I was really, really eagerly anticipating this respite.

I went to the apartment construction and asked to confirm, you guys are taking these national holidays off, right? Yes, they were. Great, thanks. I went to the community centre construction. You guys are taking the national holidays off, right? No, just Sunday. Wait... what?

I found myself yelling at the on site manager like some kind of crazy person. To my surprise, they actually did agree to take the days off. But it was a somewhat phyrric victory. It became clear that this was the only time they'd bend. After this one time, to meet schedules, they were going to be working through any and all holidays from this point on. Not only were they not going to listen to me rant like that a second time, the psychological impact of me needing to yell at other humans in order to address my problems was in itself going to take a toll on me.

The second tipping point was one Sunday night around the same time. While the restaurant is open seven days a week, and its regular hours are to be open until 5 in the morning, on Sundays they shut down at midnight. Not always. It depends on if Monday is a holiday, or if they have a special party. But most Sundays. And I came to cherish it. I would check their sandwich board on the way to home to make sure they weren't staying open, and anticipate that moment when the fan turns off and I could physically feel the onset of quiet.

But this one Sunday night, despite the schedule, the fan was still on. Maybe they just had some late cleaning or something. I waited. It kept me up not just from the noise, but from being held in that anticipation, hoping that it would shut off any minute. It got to be about half past one in the morning. So I went to go see what was going on.

It was closed. When I looked in the glass doors, I saw the manager sitting there, doing paperwork or something. I stepped in and asked why the fan was still on if the restaurant was closed. He said he forgot to turn it off. I lost my shit. Dude, what the fuck? You forgot ? This might just be your workplace, but I fucking live with your shit. How is it in all the times I've been here to go over this that I failed to impress upon you that I'm on the verge of murdering you because of your fucking fan?

Just as frustrating as the tipping points themselves was the underlying knowledge that all I had as negotiating tools were mostly desperate attempts at emotive appeal.

Getting Litigious

It wasn't my idea to sue anyone, I don't really think that way. I just wanted to consult a lawyer to see if maybe I could learn a little about the law and see if there were any regulations I could exploit. Like, maybe there are some civic bylaws about sound levels that would restrict the time frame construction could happen, or zoning issues which impose conditions on restaurant facilities, or something. Something, anything, that would provide some constraints on what they do.

And the goal wasn't to get it all to stop entirely, as I was sure there was no law anywhere that was going to let me close a restaurant or halt a construction. I just wanted some kind of compromise, since it felt like I was just at the mercy of corporations that did whatever on a whim and left me to cope with all their externalities.

It turns out you can consult a lawyer in Tokyo at any number of bar associations throughout the city. You pay 5000 yen to speak to a lawyer for half an hour, get some consultation, and then decide what you want to do. I chose one place because they offered a free translator. I also brought in a Japanese friend, because as much as I like to think my Japanese is functional enough, I thought legal details are something I should be extra sure about. As it turned out, the free translator had the worst English ability of everyone in the room, so I'd recommend to everyone doing something similar to just bring someone you trust if you can.

It was the lawyer I met who advised that I sue. Basically, that's the only way you can push for the changes you want, because there isn't just some big rule book that you can turn to that decides who can do what in all of life's circumstances. His plan was basically to sue for an ungodly high amount, which was about 70 million yen. That number was justified on the merits of lost income due to an inability to work to my best ability, maybe some other factors to pad it out, I don't remember. The real point was that there never was any expectation to see anything like that amount. The hope was that the legal process itself would be enough concern for the defendants to pursue some compromise, and that I could potentially "win" the case enough to cover my legal fees. The cost to me would be 100,000 yen up front, and then the lawyer takes some percentage of any settlement in my favour. I think it might have been 20%, but I can't remember for sure.

I probably should have shopped around for more lawyers, but, I have to admit, emotionally I was so relieved to be offered some kind of plan for a way out of the misery that I just went ahead. Also, this lawyer's plan seemed reasonable enough that I didn't see too much harm in it.

The Legal Process

Before you can even go to court, you have to attempt arbitration. Put another way, the first thing a judge is going to ask is, "have you tried arbitration?" If your answer is "no", then they're going to suggest you do that, so you might as well get that step out of the way, as pointless as it may seem. Arbitration is handled by a specific type of judge, and all I remember was that there was a meeting in some government building out near Asakusa. I had to prepare a whole bunch of documents outlining my issues, with the lawyer's guidance. Then, on the appointed day, you go to this place, and the mediator judge first saw me with my lawyer, then he saw the defendants, and then he saw both of us.

It turned out to be both a brief process, and as much as a formality as expected. Both the restaurant and the two constructions, who were all named in my case, flat out said no to any compromise of any kind. Both construction companies said there was no way they could make any changes that would alter the schedule even by a minute, and the restaurant held to their claim that it was too expensive to change the fan, and they said they didn't think it was loud enough to merit my claim that it should be changed.

I also learned from this that the threat of a legal process was of no concern to the two construction companies, or the city government that was behind one of them. They had legal staff on payroll to attend to any proceedings, so it wasn't an additional cost to them to hire lawyers. Which means there's no economic incentive for them to pursue compromise. I'm sure they had other things they'd rather deal with than me, but, it was still just another day at the office for them. For the restaurant, I think they had to hire a lawyer, but whatever the checks and balances were for them, they were just as committed to hold the line as the construction companies.

So then, the court process began. My lawyer advised that I should show up to every court date, because it would apparently make a good impression on the judge. In retrospect, I think that's bullshit. Most of the trial is done outside of the courtroom, and it goes like this. You hand in all this paperwork to lay out your claim, along with any other evidence, like video or audio recordings or whatever. Then, a court date is decided, where you show up, and the judge just makes sure everyone has received and read all the documents to that point. Then both sides say that the other side should provide more documents, each side agrees to provide more documents, and a new date to meet in court is set to check if all the necessary paperwork is available. This repeats over and over, so most court dates are less than ten minutes and it's all just confirming paperwork. So far as I could tell, there was no value in me being there for any of that. My lawyer said it "looked good" for me to be there, but I don't think the judge ever gave a shit.

This process dragged on over a year, because each court appointment was scheduled at least a month apart, and there seemed to be an endless need for paperwork. I had to keep explaining new angles of my issues, and a big sticking point was objectively how loud everything was. I had to borrow a decibel meter from the city environmental office and provide readings, and video recordings of me taking readings, and stuff like that.

Part of the difficulty in winning the case became clear. The judge seemed to want a robust diary of times and dates of all the noise happening. The burden of proof was so much that for me to find the time to record everything at the level of consistency they were asking would be as disruptive of my life as the original noise problem itself. I tried to give as much evidence as I could, but I had to work and live my life, and what is the point of all this if the cure is worse than the disease?

All this happened at a huge court building in Kasumigaseki, and if anyone says, as I sometimes hear, that Japan is not a litigious country, then they are full of shit. This building was, is, at least 12 floors, maybe more, full of dozens of courtrooms on each floor, and each one of them bustling with activity. As I would sit and wait in a court room for my case number to come up, I overheard all sorts of interesting cases. Small business problems, divorce issues, traffic incidents, you name it. At least it made for interesting people watching and eavesdropping.

Anyway, the real action seemed to happen away from the court room. On another floor of this building was a sort of office space with a meeting room, where I, the defendants, and the judge would sometimes be gathered for less formal discussions. This was the time and place where I was definitely needed, and I should have made more use of it. One of my regrets about the situation was that, not only did I feel inhibited by my Japanese level in a legal context, I also felt that there was a way of doing things that I wasn't totally clear on, so I held back from speaking my mind more. Looking back, I should have asked more questions, made my point of view clearer, argued with the defendants. Of course, one should never be obnoxious or emotional, but I should have aggressively pushed for what I wanted instead of assuming that the lawyer was handling the ritual of it all.

The case went on long enough that the second construction of the smaller building finished, and at my lawyer's suggestion, I dropped the case against them, as it simply created more complexity in the scheduling.

Results...?

Against the restaurant, it was kind of a small victory. They relented and agreed to fix their ventilation system with a focus on making it quieter. And it did get better. I say small victory, though, because with the time and effort of the court case to get there, it just didn't feel like a huge win.

The community centre construction case went totally sideways, though, despite it seeming like it was going my way right up to the end.

There was one final day in court that was like an actual trial, with cross examinations and objections, and like everything you see on TV, except much slower and less dramatic. There was a court appointed translator who was really, really frustrating. At that time, I knew just enough Japanese to be able to tell that she wasn't getting my statements exactly right, but my Japanese wasn't good enough to offer better corrections. This was also a regret of mine in the process. I should have spoken what Japanese I could and English to fill in the gaps. I was hung up on the idea that I should speak in English so I could feel totally in control of my words, and it somehow seemed more official to use a translator entirely than bumble through a mixture of languages. But now I know the best option is to use every tool at your disposal to try and communicate everything you need to say as best you can. It's far better to risk embarrassing yourself with your language skills than risk something being not quite what you meant.

Anyway, the lawyers for the defendants for the community centre were bumbling idiots who asked all sorts of dumb questions. For example, at one point they asked me if it would be normal to sue for something like this in Canada. I said I had no idea and didn't see how it was relevant, and the judge stepped in to emphasize my point for me, telling the two lawyers to cut that shit out. It was like that for a lot of their questions. With the judge smacking them down pretty much for everything they were asking, I thought I was killing it.

There was one older guy on the defence team, I can't remember his position, but he asked some tough questions, but he didn't seem to get more involved than maybe three questions. Just as an aside, the defence was always a team of about six to eight people. I don't know what they all did, which ones were for the restaurant or which construction, but there always seemed to be a lot of them.

My feeling after that court date was that everything was looking good. In spite of the language issues, I thought I handled all their questions, the judge was with me, and my lawyer remarked in the hallway that it went surprisingly well.

Then after that court date, we had one more of one of these informal meetings in the judge's office area. It was then, well after a year and some months of this case going on, that, out of nowhere, the construction company for the community centre provided a spreadsheet of decibel readings for every day of the construction. A big question in the case was always how loud is the construction really was, and I seemed to be always providing various ways of trying to demonstrate it, from video and audio recordings to decibel readings and so on.

The construction company, though, never mentioned having had any decibel meters, never made any attempt to provide their own counter to what I provided. They had no evidence one way or the other that they had ever existed. How is it that they went all this time without ever remembering to mention that, oh yeah, they also have their own recordings counter to mine. And now that they finally conveniently remembered, all they had to show for it were a bunch of numbers written down in an Excel spreadsheet that I could have whipped up in less than an hour. If it's not clear, I am completely sure that this last minute "evidence" of theirs was completely fabricated.

I felt that if the judge allowed that to be admitted into evidence then that would indicate to me that this whole case was being judged on a bunch of ethereal bullshit, that anyone could be saying anything and it all counted equally. Or disregarded equally. The judge admitted this horse shit spreadsheet, and I knew the moment I saw him take the papers in his hand that I was fucked. I mean, I can't say for sure that this bullshit last minute "evidence" was the turning point. Maybe the judge was completely aware that it was bullshit. But, to me, it seemed that allowing it to even be admitted indicated whatever I perceived about how well things had been going otherwise, there were aspects of the procedure and how everyone else saw it that I was not aware of.

A few weeks later, I went in to the court to hear the verdict, which, unsurprisingly, was entirely against me. I got nothing of the amount I had sued for, so, in the end, I was on the hook for all the legal fees. Which, all told, was maybe 400,000 yen spread out over a little over two years. It should also be mentioned that my lawyer tried to ask even more of me, claiming that the terms of my contract with him obligated me to pay for additional court fees, in some tiny small print addendum to the main contract. I argued with him about it, my point being that it was unreasonable that this significant impact on cost was buried in some minor subsection of additional paperwork separate from the contract I had with him. Eventually he dropped it, not because I convinced him of anything, but I think he could see that I wasn't going to pay him unless he took me to court, and in the grand scheme of things, I think he felt he would be spending his time more profitably focusing on other clients and cases. In any case, in retrospect, this and a few other reasons too detailed to go into make me wish I had shopped around for different lawyers.

Looking at the total cost for me, it would have been marginally more expensive to have moved, but maybe more worth my time. Though who knows what devils I don't know yet would be waiting for me at the next place. In any case, the legal costs trickled out of me slowly, and the whole process was never clear on how long it would go on, so I never really had that moment of weighing the two options in distinct relation to each other. I just kind of got swept up in it.

Lessons learned

It wasn't entirely a waste. Eventually, the community centre construction stopped, the restaurant was quieter, and my neighbourhood returned to livable conditions.

But... almost immediately after the community centre was finished, another building almost right beside me was torn down and a new construction was started.

This time round, though, I knew exactly what to do. I looked at the notices they put in my mail, and I showed up at their obligatory neighbourhood meeting where they are required by law to explain the conditions of the construction. At that meeting, there were other people in the neighbourhood with issues different than mine. Would the new building block their view, would dust and particulates from the construction cause breathing problems for people with certain conditions, and other things that I had never thought about. In the same way I regarded everyone else there with surprise, I bet everyone else looked at me, surprised that anyone would be so concerned about noise. I made it clear that the construction company would have to spell out exactly, in minute detail, their proposed daily schedule, including what activities would be happening.

What I learned from my court experience was that the one thing construction companies fear the most is the deadline. They have a client that expects a building to be finished by an agreed date, and anything that might push back that date would be a huge cost to them in terms of over running their resources, conflicting with other contracts, and the worst case scenario would be the client suing them for breach of contract. Once the project has started, it's pretty much on rails and no court is going to step in and stop it because, essentially, if you don't respond to the documents they send in the mail informing you of what they intend to do, you've essentially acquiesced to their plan.

What you need to do is send a letter as soon as you get their first outline and state clearly that you don't agree, and propose what you think is a reasonable schedule, or address whatever your point of contention is. You won't be able to tell them to not do the construction at all, but, you can make them agree to very specific hours and days. If they go over the agreed times, then you can literally go to the local koban, show them the written agreement, and have the cops come and halt them for the day.

They will, as I discovered, in this process of negotiation, try their absolute best to use the trickiest of phrasing and weaseliest of weasel words to give themselves the ability to fudge schedules when needed. If you know Japanese cops, you know that they will also look for reasons not to take action, so you have to be sure that the contract is so undeniably rock solid that even the police will agree, "yeah, it says right here you have to stop now." Whatever your language ability, go over the document with other people, a lawyer if you can, to make sure there isn't a single syllable that gives them any kind of out. All this has to be done before construction starts, but so long as you hold off on agreeing and your terms are clear and reasonable, you have the credible threat of getting a court injunction to delay them, which is basically your only card to play.

With that knowledge in hand, I was able to get the new construction to stick to a much more livable schedule. They still broke their word really late in the game as their deadline came down. At a certain point, even getting an injunction will take longer than the remaining time on their schedule, so they'll start to play it fast and loose. They'll inevitably have delays, what project doesn't? But, at least if you've made them agree from the start, you're only looking at a month or so near the end of them fucking around, and not the whole duration.

Bottom line

Life isn't perfect, you're going to get involved in situations you'd rather not spend your money and time on. This was one of those things. Would I have spent that money on a vacation or an awesome computer or whatever else, rather than be embroiled in a lawsuit? Sure, of course.

But, in another sense, if you accept that life comes with at least some friction, bullshit you just have to deal with because your time on planet Earth isn't going to be a perfect Utopia, then this situation ain't so bad. I learned a lot from it, especially a lot about tenancy law which has also helped me in dealing with landlords and stuff.

The only regrets I have about the whole experience are the ways in which I wish I had handled it with a little more finesse. How I would have talked to more lawyers and maybe selected a different one, how I definitely would have spoke up more clearly to the judge, and other details I didn't mention because they're too fiddly to go into. Then again, I wouldn't know to regret those choices if I hadn't learned from the experience I had... so who knows man. It's just life happening, that's the way it happened for me for a while. I've definitely squandered money, time, and emotional energy on worse things.

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