Fábio Silveira Bueno Bianco
Lawyer at Marcos Martins Advogados
Despite the various changes brought about by the New Code of Civil Procedure (“New CPC”), which attempts to bring a more modern and dynamic look to Civil Procedure, there is a pessimistic current that says that the new procedural law will not change the statistics of ever-increasing demands on the Judiciary at all. On the other hand, an optimistic trend says that with the new rules, the average length of a case will fall by half and so, in the medium to long term, the number of cases will also fall. So let’s reflect: will the New CPC be enough to reduce the number of cases before the courts?
Indeed, with the proliferation of law schools in Brazil[1], access to justice has gained in scope and speed. There are other factors that also contribute to the proliferation of lawsuits, such as, for example, the Consumer Protection Code and the Consolidation of Labor Laws; laws designed to protect the underprivileged, but which have boosted the “will” to litigate. The fact is that there is a culture of litigation in Brazil. Nowadays, a simple defect in a piece of electronic equipment purchased or a queue at the bank can trigger an avalanche of lawsuits. All of this is aggravated by the State itself, the Judiciary’s biggest “client”.
Allied to these factors, one must also consider: (i) that law schools teach lawyers and other legal professionals to litigate only, further fostering this culture; in other words, greater emphasis is placed on classes on litigation and its appeals and none on conciliation and mediation – in fact, with regard to the latter, they are not even on the list of compulsory subjects in most schools; and (ii) the helplessness of judges, who in the midst of a whirlwind of cases are forced to work without the minimum basic conditions, since the judiciary is not properly equipped; and they are still forced to meet aggressive targets.
We could conclude that simply changing the law would not bring about significant changes, since the issue is cultural. However, while respecting opinions to the contrary, I am particularly optimistic and tend to believe that the changes brought about by the New CPC go beyond procedural improvements.
In addition to the important changes related to the way judges act, such as the obligation to respect case law, the need for uniform judgment of repetitive actions and observance of the chronological order of proceedings, it is possible to see in the New CPC an attempt to delegate very important changes in posture to the parties in a legal dispute.
One of the main changes is the vehement pursuit of conciliation through mediation. The judge and the parties are obliged to seek conciliation as soon as the dispute is initiated and throughout the process. What is being proposed here is not what already exists today, hearings that do not lead to any agreement, but the proposal that the professionals involved effectively promote mediation in order to achieve conciliation.
Another significant change is the possibility of the parties agreeing on procedural acts. Like in arbitration, the parties will be able to speed up procedures so that the process actually lasts a reasonable amount of time and the outcome can be used to good effect.
In short, these and other provisions, such as the imposition of fines for protracted appeals and the possibility that the summons can be served by the party itself, in the New CPC, in my humble opinion, are a real help for the characters involved (be they the Parties, Lawyers, Attorneys and Judges) to try to act in a less litigious manner, and to seek through the Judiciary what really matters, Justice at the right time.
[1] Brazil has the largest number of law schools in the world, according to Dr. José Renato Nailini, President of the São Paulo State Court of Justice, when he spoke about the Judiciary at the LIDE event, held on 17.03.15, in the city of São Paulo-SP.
