3.6.3 Case management
In the ordinary procedure, which is applied to civil lawsuits filed in accordance with the LPI provisions, there is a provision for a prior conciliation hearing before the presentation of the answer (Article 334 of the CPC). However, although the wording of the CPC suggests that this hearing is mandatory, it is not carried out in many cases.
Thus, in Brazilian law, the plaintiff has the autonomy to make a request as they wish, and the defendant has the burden of questioning it, in view of the principle of preclusion. The parties also have a duty to act in good faith and to cooperate (Articles 5–6 of the CPC). These factors guide the case management that can be performed by the judge, which is based on the powers granted to them by the CPC:
The judge will conduct the case according to the provisions of this Code, being responsible for:
I – ensuring the parties equal treatment;
II – ensuring the reasonable duration of the case;
III – preventing or repressing any act contrary to the dignity of justice and rejecting merely delaying requests;
IV – determining all inductive, coercive, mandatory or subrogatory measures necessary to ensure compliance with a court order, including in cases in which the subject matter is a monetary obligation;
V – promoting, at any time, the resolution of the dispute by the parties themselves, preferably with the aid of court conciliators and mediators;
VI – extending procedural terms and changing the order of production of evidence, adjusting them to the needs of the conflict so as to grant greater effectiveness to the protection of the right;
VII – exercising police power, requesting, when necessary, police force, in addition to the internal security of the courts and venues;
VIII – ordering, at any time, the personal presence of the parties to question them about the facts of the case, in which case the confession penalty will not apply;
IX – determining the compliance with procedural requirements and the resolution of other procedural defects;
X – when facing several repeated individual claims, notifying the Public Prosecutor’s Office, the Public Defender’s Office, and, as far as possible, the other legal entities referred to in Article 5 of Law No. 7,347, of July 24, 1985, and Article 82 of Law No. 8,078, of September 11, 1990, so that, if applicable, they may promote the filing of the respective class action.
Sole Paragraph. The extension of terms provided for in item VI can only be determined before the regular term is ended. (Article 139 of the CPC)
Considering the legal powers granted to the judge, it is possible to identify the following case management tools that are at the judges’ disposal:
- referral of the case to conciliation or mediation;
- pre-trial order;
- trial hearing;
- flexibility of procedures;
- scheduling of procedural acts and terms (Article 191 of the CPC);
- extension of dilatory terms;
- change in the order in which evidence is to be produced;
- use of expert evidence, the judge being able to use the traditional model, informal expert evidence or out-of-court expert evidence; and
- procedural legal transactions (Article 190 of the CPC).
The Brazilian civil procedure adopts an eclectic theory of the right of action. Thus, the action itself must be understood as a right to take a certain dispute to the judiciary, which analyzes it upon compliance with certain conditions (i.e., the interest in the action and legal standing). The lack of such compliance imposes the dismissal of the case without prejudice (allowing the filing of a new lawsuit upon rectification of the defect). For part of the Brazilian judiciary, when the analysis of these conditions depends on evidence to be produced during the case, there is no analysis of conditions per se but of the merits themselves, which affect the possibility of bringing a new claim. Conversely, procedural interest is defined based on adequacy and necessity. Procedural adequacy may be limited when an administrative proceeding is pending, especially with regard to the designation of coauthorship of the invention, because in those situations the necessity of a judicial claim is unclear.
Therefore, considering the regulation of procedure in Brazilian legislation, a party is compelled to allege all possible issues – either in the complaint or in the answer – to avoid the risk of preclusion. Furthermore, as this exposition of legal theory and evidence is already made within the scope of the court case, subjecting the losing party to the payment of procedural costs and expenses, it can be observed that settlements are infrequent in the initial phase of the trial, when it is before the lower court.
After the parties have expressed their opinion, the organization of the case is then made by a judge. In addition to verifying whether there are procedural defects for remediation, the judge may verify the possibility of judging the case as found without additional evidence, partially judging the case or determining the evidence to be produced (Article 357 of the CPC). To adopt the best possible direction for the case, the judge must, therefore, consider the limits that are provided for in law – namely:
- the limit of disputed issues between the parties that were defined based on their previous statements in the case (complaint, answer and reply or, occasionally, a procedural legal transaction between them relating to this topic). It is important for the judge to consider the limits defined by the parties for the cognizance of the disputed issue, since the judge’s performance beyond, more or less than what was requested will be considered irregular (Article 141 of the CPC); and
- the limit defined in law for the freedom to act, since, in Brazilian law, there are formal issues that cannot be changed even upon an agreement between the parties or upon determination of the court, under penalty of nullity of the procedure.
Although there is no legal definition of absolute and relative nullities, jurists have agreed that the former must be acknowledged at the judge’s own initiative and cannot be remedied (see Article 278 of the CPC), while the latter can be validated, if not mentioned, and if, in any other way, they achieve the intended purpose (see Articles 276–277 of the CPC). This way, for example, a judge cannot rule out the action of the Public Prosecutor’s Office, whose function is to protect the unable, under penalty of nullity. Defects in the service of process are also not validated unless the party spontaneously makes a statement in the case record.
With regard to the procedure itself, some issues have already been predefined in law: for example, the terms for defense, the assignment of the burden of proof, the hypotheses of procedural preclusions and the assignment of jurisdiction, which can only be changed by the parties or by the judge if there is an express provision, as will be seen below.
To assign the burden of proof, the judge must delimit the issues of law and fact that are the subject matter of the dispute; assign the burden of proof between the parties; determine the evidence that is to be produced (Article 357 of the CPC) – granting or not the request of the parties in this regard; and, as the case may be, designating a trial hearing. The law provides for a general rule on the assignment of the procedural burden of producing evidence. Article 373 of the CPC clearly assigns the burden of proof between the parties:
The burden of proof is incumbent upon:
I– plaintiff, as to the fact constituting his/her right;
II– defendant, as to the existence of a fact that prevents, modifies, or extinguishes plaintiff’s right.
Paragraph 1. In the cases provided for in law or in view of peculiarities of the case related to the impossibility or excessive difficulty in fulfilling the charge under the terms of the head provision or the greater ease of obtaining proof to the contrary, the judge may assign the burden of proof in a different manner, provided that the judge does so by means of a reasoned decision, in which case the judge must give the party the opportunity to claim the discharge of the burden assigned to it.
Paragraph 2. The decision provided for in Paragraph 1 of this article cannot generate a situation in which the discharge of the burden by the party is impossible or excessively difficult.
Paragraph 3. The different assignment of the burden of proof may also occur upon agreement between the parties, except when:
I– it falls on the party’s unwaivable right;
II– it makes it excessively difficult for a party to exercise the right. Paragraph 4. The agreement referred to in Paragraph 3 may be entered into before or during the case.
Regarding the plaintiff’s procedural burden, the CPC establishes the need for a precise definition of the cause of action and, above all, of the request, since both will limit the scope of the judge’s actions.
This general rule on the assignment of the burden of proof is strict, but it may be waived by the judge in specific cases. The judge cannot make exceptions to the general rule on the assignment of the burden of producing proof if the discharge of the party is impossible or excessively difficult.
If the issues are very complex, the judge may schedule a cooperative pre-trial hearing so that the parties can clarify their allegations and contribute to the definition of the disputed points and the assignment of the burden of proof, which always remains under the responsibility of the judge (Article 357(3) of the CPC). The parties may also, by mutual agreement, present to the judge the delimitation of the disputed matters of fact and of law (Article 357(2) of the CPC).
If the judge determines the production of expert evidence, the judge must, as far as possible, immediately present a procedural schedule for its realization (Article 357(8) of the CPC) and also a possible trial hearing for the hearing of witnesses.
It is also necessary to state that a judge cannot render decisions without having given the opposing party an opportunity to express its opinion, even though the judge may decide at their own initiative, except in exceptional cases, such as those of interlocutory relief and relief based on evidence (Articles 9–10 of the CPC).
As a rule, procedural terms are defined by law. The term for filing and objecting appeals is considered a rule of public law, as it is directly related to the exercise of the constitutional guarantee of adversarial procedure and of the opportunity to be heard, which cannot be changed by the judge. The judge can only extend – not reduce – secondary terms of the procedure, such as the presentation of documents, the indication of the list of witnesses and the statements on documents, among others (Article 139(VI) of the CPC).
For cases that admit resolution by the parties themselves, the CPC allows the parties to stipulate changes to the procedural timelines to adjust them to the specificities of the case and to agree on the procedural burdens, powers, rights and duties before or during the case (Article 190 of the CPC). In this case, the judge, at their initiative or at the request of the opposing party, controls the validity of such agreements, refusing their application only in cases of nullity, abusive insertion in an adhesion contract or where any party is in a manifest situation of vulnerability (Article 190(1) of the CPC). The scheduling was an innovation of the CPC/2015, not allowed in the CPC/73.
It is also possible for the parties, together with the judge, to set a calendar for the practice of procedural acts, when applicable (Article 191 of the CPC). Such a calendar is binding upon the parties and the judge, provided that the terms therein are only modified in exceptional cases and if duly justified (Article 191(1) of the CPC). The parties need not be notified to perform a procedural act or to hold a hearing when the dates have been designated in such a calendar (Article 191(2) of the CPC).
In the absence of any specific provision by the parties, by mutual agreement and considered valid by the judge, it is common (though not a rule) for many judges, after the complaint and answer, to grant a common term for the parties to reiterate their requests for evidence, specifying and justifying their need in light of the theories presented during the course of the case. Although a common practice, this expectation should not replace the ’parties’ precaution of submitting, in the complaint or answer, an express request for evidence. This is because only an express request for evidence may be the basis for a possible appeal seeking the annulment of a trial due to the denial of the opportunity to be heard.
With respect to requests for the production of evidence, or in the absence thereof, the judge proceeds with the pre-trial order, assigning the burden of proof according to the general rule in Article 373 of the CPC, considering, occasionally, the terms of the procedural agreement entered into between the parties (Article 190 of the CPC). It is also possible for the burden of proof to be reallocated in the course of the case upon a reasoned decision of the judge (Article 373(1) of the CPC). Note that this reallocation can occur either upon request or by a decision of the judge at their own initiative. It is worth noting that the special industrial property legislation, the LPI, does not have specific standards for proof, so the general rule of Article 373 of the CPC applies.
The pre-trial order and organization of a case occur by means of the judge’s decision. This decision marks the end of the so-called pleading stage. This means that, as of this decision, it is no longer possible to change the facts and the requests presented. It is in this decision that the judge determines the removal of pending procedural issues, determining their correction when applicable, and establishes the factual and legal disputed points that will be taken to trial. The requests for evidence are also analyzed in this decision.
Exceptionally, a judge may analyze the requests for evidence separately when the judge understands that several pieces of requested evidence are related with respect to priority. That is, if the production of a piece of evidence may fully define the outcome of the case, the judge may order the production of this evidence and, only after it is produced, verify if it is still necessary to produce evidence related to subsidiary issues.
In the Brazilian system, it is exclusively incumbent upon the judge to define which points are accepted as the subject matter of the evidentiary stage. There is no legal rule or case law that limits the points to be heard. In practice, judges tend to establish only factual points because, in theory, it is not necessary for the judge to follow only the legal theories presented by the parties. Exceptionally, however, judges may choose to define disputed legal points when they believe that they are dealing with matters complex or unusual in the daily life of the court. It is important to point out that the judge’s nonacceptance of certain points for the analysis of the dispute may be subject to objection by the parties.
Exceptionally, the presentation of the disputed points may be performed in a hearing specially designated for this purpose. This possibility is provided for in law (Article 357(3) of the CPC). However, such a hearing is not a necessary step in the procedure, and even upon request, the judge may refuse to hold one. Conversely, considering the complexity of some cases involving patents, such hearings may be an important tool for rationalizing the case, provided that the interested party does not disregard this possibility. This is because, at the specially designated hearing, it is possible to present the judicial treatment and the possibility of acts to be performed at the hearing: the presentation of a report, approval of a procedural agreement, mutual definition of the disputed points, definition of the limits of expert analysis, presentation of video material and so on.