Apparently simple but with grey areas remaining
When it comes to the civil procedure, it is undeniable that one of the first issues that comes to mind is perhaps the most important: deadlines. The whole civil procedure in Brazil is regulated by deadlines set by the Law, which invariably end up determining the day-to-day of work of the litigation attorneys. The first question that is always asked before deciding which measure or appeal is suitable, what should be addressed to the Court and what kinds of evidence should be used, is: what is the deadline?
As might be expected, the deadlines and terms were also subject to a lengthy review by the jurists who worked on the bill of the new Brazilian Civil Procedure Law (Federal Law No. 13,105/2015) which entered in force last March. The new law has substantially altered issues related to terms and deadlines in different aspects: extension of the deadlines, the way of measuring them and even the possibility of the parties negotiating and agreeing to different deadlines from those provided by the Law.
These issues directly affect the day-to-day working life of the Litigation attorneys and the courts. They also have an indirect impact on the effectiveness of the courts' actions and the expectation of those who apply to the courts to try to resolve their problems in the shortest time possible.
In order to simplify the deadline issues and reduce the number of disputes and appeals presented to discuss the compliance or not with the deadlines, the authors of the new Brazilian Civil Procedure Law proposed the following amendments. We present a comparison with the provisions of the previous Law:
A simple analysis of the amendments above shows the new Law aims to simplify the deadlines' dynamics, guaranteeing more certain and predictable proceedings, as well as being more adaptable to the parties´ expectations.
While the previous Law provided deadlines of five, 10 and 15 days for different steps during the proceeding, the new Law provides a default term of 15 days for the compliance of those steps. This also applies to the deadlines to appeal or to answer an appeal, except for clarification motions that must still be presented within five days.
Beyond the appeals, this default deadline was also adopted for other proceedings during the lawsuit, such as the presentation of an answer for the Defendant, the presentation of a technical assistant when a technical report is ordered by the Judge and for identifying the witnesses for their depositions when this kind of proceeding is ordered by the Judge.
Another important change was the adoption of deadlines that will only occur during working days. Whereas weekends and holidays were included in the previous way of measuring deadlines, the new Law is very clear in stating that the days when the courts do not work will be considered as holidays for deadline purposes. However, the Law also establishes that the parties will have to prove when a Court did not work.
Although, at first sight, the standardizing and measuring of deadlines should represent an increase in the length of a lawsuit, the tendency is that the stability and the certainty provided by these new rules will result in fewer pleadings and appeals related to controversy over deadlines.
It should be remembered that the fact of having 15 days to comply with a deadline does not mean this should be done on the last day possible. On the contrary, the new mechanisms provide a safeguard that allows the litigators to organize their deadlines better and, why not, comply with them in advance.
The new Law will better attend the parties´ interests as it will enable them to negotiate and establish different deadlines from the ones stated by Law.
Notwithstanding all the above, as should be expected, the enactment of any new law not only brings improvements but also raises questions and uncertain situations that will demand an in-depth analysis of the subject matter and the views of legal scholars to see how they fit into the new system.
What happens with the deadlines set during the period of the previous Law that will expire during the period of the new Law? How will the Law that should be applied be established - through the issuance of the decision that sets the deadline or the notification of the party entitled to comply with it?
The very date of the coming into effect of the new Law itself raise questions, as different opinions were presented about it. Even though the Superior Court of Justice tried to clarify this matter in a recent judgment session, those who defend different views still have strong grounds for doing so.
These are temporary arguments that should soon stop creating further pleadings. However, until this happens, it is possible that we will see lots of questions and appeals that will demand court decisions removing obstacles that jeopardize the stability and security the Law aims to provide.
Other ongoing issues should take more time until they are sorted out, as it happens with the enforcement of civil procedure rules in other areas of the Law, such as the rules related to labor issues, to which the Civil Procedure Law should be applied secondarily.
A lot still has to be done. Arguments will arise which will lead to new defense theories that will, in turn, depend on the views of legal scholars and by the Courts.
At the end of the day, the simplicity, stability and security the new mechanisms aim to impose on the civil proceedings straight away will depend on solutions that are not simple. These will be based on different interpretations of the Law. Until then, those involved in court cases will have to expect questions and uncertainty.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.