The study of Law – and in particular of civil procedure – in the light of the economic subsidies is certainly not something new. Such information is – or should be – considered by the legislator prior to, during, and after the proceedings. Reflecting on the subject is undoubtedly one of the most productive ways to seek solutions to the problems of the Brazilian legal system.
Aware of this, Brazil’s Superior Court of Justice recently held a Meeting to discuss issues related to the cost of lawsuits and legal disputes. It was a valiant initiative with quite rewarding results. The “predatory” use of the civil procedure was discussed there. Among the topics chosen by the different lecturers were the granting of free legal aid, the consensual solutions, and the litigations that show with the “recurrence” of claims the difficulties to determine security and isonomy.
I will take this space to highlight some of the topics that seem relevant to me, on the premise that the most obvious solutions – making the proceedings more costly to the parties (by increasing court fees), and increasing pecuniary sanctions grounded on (alleged) litigations in bad faith – can and should, despite being valid tools as well, give way to more elaborate proposals, which, as much as possible, could reach the causes of the problem without hindering access to justice.
First, the economic analysis of the proceedings, in spite of being really indispensable, must be taken with a pinch of salt. Justice – similar to public health service – does not exist to be profitable and the most relevant positive results that may arise from it, from a macroscopic perspective, is justice and security (to overcome the litigation and, consequently, reach a settlement). The latter, as a matter of fact, is sought not only by those who went to court, but by all those who guide their acts – notably the market – according to the messages issued by the agencies with a sentencing function. Therefore, it is necessary to consider the scopes of the jurisdiction and confront them with the costs required for the objectives to be met. Security and predictability, for sure, are fundamental factors for stability and the economic development.
Second, it must be considered that the Brazilian federal model – in which, instead of granting normative autonomy to the states, the federal law is primarily adopted – entails a relevant cost in the attempt, often inglorious, of standardizing the interpretation of Law, in a country with a great deal of diversity as well as social and economic complexity. It would be unrealistic to think about a radical change in this respect, but it is a fact that the relative inability of the system to standardize a considerable amount of decisions tends to stimulate filters – either explicit or disguised – which, in the medium term, may lead to a local interpretation of the federal laws. In oblique ways we will become a federation, and if this really happens, maybe there will be relevant economic gains for everyone.
Third, it is necessary to carefully consider the role of the regulatory agencies and, in particular, the limits of the jurisdictional control over this activity. On the one hand, the jurisdictional intervention can not be waived, especially because of what is set forth in article 5, item XXXV of the Federal Constitution. However, on the other hand, it must be considered that such agencies are based on specialization and autonomy. Passing the control of those agencies’ responsibilities on to the judiciary, besides being irrational, will result in significant costs not only because of the review of judgments, but also due to the uncertainty associated with it. A provision designed to refrain or prevent litigations tends to be, paradoxically, a source to increase the workload of the judiciary.
Fourth, it is necessary to think over the role of the instruments that the collective legal protection (in a broad sense) can and should play in the system. The model of creating precedents set by “pilot” cases, not being inappropriate, seems to generate costs and difficulties that in some situations can not even be compensated by the results – to the extent that the desired standardization is not achieved.
Fifth, we must consider that the adoption of non-adjudicated means of controversy can not be encouraged with a mere talk. It is not plausible – and it sounds unsuspecting or naïve – to imagine that social and economic factors could conciliate just by being aware that this is the best for the system. In other words, concrete work must be done towards consensual solutions. This means the state’s involvement to create adequate structures to promote conciliation and mediation. One can no longer use the argument of celerity of the proceedings, in a paradoxical way, as a justification to reject the state’s commitment in the search for an amicable resolution by the parties.
Sixth, by the same token, it is necessary to encourage the early production of evidence in such a way that it is free from threat (CPC / 15, article 381, II and III). Even though we have not yet equated with the common law models in this respect, the legal system has an appropriate remedy that allows the parties to be able to know the facts better before litigating on the merits, and this way, they may have symmetrical information, and a preview of the fees, risks and chances. In fact, there are reports that the reforms towards the labor law – which have led to a potential increase of the fees in the proceedings – have already cause a greater interest in the measure. It is worth giving it a try.
Seventh, it is necessary to consider the possibility of starting a legal procedural transaction with responsibility and seriousness. Then there is the possibility for the parties to establish incentives and disincentives, even if the transaction fees are well weighed. It is necessary to be aware that the time and energy invested at the moment of closing a contract, in clauses that deal with possible procedural developments, tend to generate considerable future savings. The “preventive” and “litigation” attorneys need to talk to each other.
Eighth, it is necessary to consider the expenses resulting from the state activity, by means of subrogation, at the moment of making its commands effective. It is not a matter of authorizing inductive or coercive remedies – mainly in the actions involving an obligation to pay a sum – in an unreasonable or disproportionate manner. However, the refusal of the debtor to voluntarily make the payment represents a significant cost to the creditor and to the state. This, to a large extent, explains why the execution stage still remains a chronic problem. While that cost – even though on a provisional basis – is transferred to the judgment creditor, the judgment debtor will tend to make use of the proceedings as long as possible.
Ninth, technology must really be put to the service of results. In some cases, the use of such resources, rather than attenuating the problem may reinforce it, given to the costs involved. However, the investment is worth it. To illustrate, one can think of the savings that video conference court hearings may bring. Concerning the judge orders in petitions via Skype, the measure was adopted by only one Justice at the Brazilian Federal Supreme Court, being, so far, unknown to other appellate courts, unfortunately.
There are, certainly, many other points to be analyzed. We hope that they are indeed.