Differently from the current provision for the burden of the proof in the Code of Civil Procedure in effect in Brazil (Law no. 5 869, of January 11, 1973), that is, a static burden of the proof (art. 333, I and II), established in a rigid manner, the Bill to establish the New Code of Civil Procedure under discussion in the Brazilian Congress intends to adopt a new procedure technique intended to make the burden of the proof more dynamic.
Under the technique currently in force, the plaintiff is required to produce evidence of the facts constituting its own rights, whereas it is incumbent on the defendant to show any facts preventing, modifying or extinguishing its own right.
The current legal provision, considered excessively inflexible by many, has been criticized over the years by most of the legal doctrine, and many claim for an updating of the technique and acceptance of a flexibilization of the burden of proof. As it seems, such claim is intended to expedite the procedures, reach better conditions in the search of the actual truth and, further, reduce the duration of lawsuits, which are quite time-consuming in Brazil.
According to the latest text of the Bill to establish the New Code of Civil Procedure – still under discussion by the Brazilian Congress - the cases submitted to the Judiciary, to the discretion of the judge in charge of the case, or by means of an agreement between the parties involved in the cases at stake, may be eventually conducted with the change in the burden of the proof. In this regard, the Bill to establish the New Code of Civil Procedure provides as follows:
"Art. 380. The responsibility for the burden of the proof is incumbent on:
I - the plaintiff, in regard to the fact constituting its right;
II - the defendant, in regard to the existence of any fact preventing, modifying or extinguishing its right.
Par.1. Where provided for by the law, or in view of the circumstances of the case, when such circumstances make it impossible or excessively difficult for one of the parties to meet the obligation set forth in the lead paragraph above, or when it is much easier for one of the parties to obtain the evidence of the contrary fact, the Judge may allocate the burden of the proof otherwise, provided that based upon a well-grounded decision. In this case, the judge may give the party the opportunity to discharge the obligation placed upon it.
Par. 2. The decision provided for in Par. 1 hereof cannot generate a situation in which the discharge of the obligation by the party is impossible or excessively difficult.
Par. 3. The different allocation of the burden of the proof may also result from an agreement between the parties, except where:
I - it concerns an inalienable right of the party;
II - it makes it excessively difficult for the party to exercise its right.
Par. 4. The agreement referred to in Par. 3 above may be entered into before or during the proceeding."
In this article, we focus on the shifting of the burden of the proof ordered by the court in view of the judge's understanding that it is much easier for one of the parties to produce the evidence of its right, as provided for in the previous paragraph, but based on an imprecise and subjective assumption.
According to the rule under the Bill, the allocation of the burden of the proof would then be imposed by a court order, according to the understandings so far obtained by the judge of which party would more easily produce the evidence, in principle and in theory.
Still according to the Bill to establish the New Code of Civil Procedure, the judge's order allocating the burden of the proof shall be issued at the time of the pretrial order, that is, the time at which the judge in charge of the case would solve the controversial issues, organize the proceedings and order the parties to establish how they intend to prove their respective legal arguments.
It is interesting to observe that, according to the intended rule, the court order imposing the responsibility for the burden of the proof on the party that may more easily produce a certain piece of evidence will stem from the judge's convincement about facts and elements so far known in the proceeding at stake, and obviously it will not be possible to reallocate the burden of the proof otherwise in the course of the proceedings, at least not without affecting the regular course of the proceedings. In other words, there is not an easy solution to the disturbances resulting from a concrete situation in which the development of the production of evidence demonstrates that the shifting already ordered and in place was inappropriate.
It is easy to imagine that, due to supervening issues of varied natures, resulting from facts occurring during the previously-determined evidentiary phase of the proceedings, it is perfectly possible that the actual situation will show the inappropriateness of the shifting previously determined as appropriate, making it difficult for one of the parties to produce the evidence the judge initially supposed it would be easily produced by it. What was seen before as easy may certainly become difficult - or even impossible - in view of supervening issues.
With all well-deserved respect for the dedicated judges – whose untiring fight against the lack of structure of our court offices we witness on a daily basis, and in view of the huge volume of lawsuits and proceedings pending at their respective courts - it is necessary to ponder this issue to recognize that the shifting of the burden of the proof must be adopted with extreme caution, or, in other words, as an exceptional measure that can only be admitted where the judge has a deep knowledge of the case in all its extension and in regard to each specific case, of the scope and logistics of the evidence to be produced and, more than that, of the path to be followed when and if it may be necessary to reallocate the burden of the proof in a manner differently from the exceptionality imposed by the original pretrial order, thereby avoiding never-ending appeals on this specific issue filed with the relevant courts.
In other words, exactly with the intention of expediting the procedures and reducing the duration of the cases, it is crucial to consider the adoption of the shifting of the burden of the proof as an exceptional measure and to make a deep reflection on the manner how a new pretrial order could be issued after the process has already been streamlined under a first pretrial order, whenever the shifted burden of the proof reveals itself inappropriate or even impossible on account of any supervening issue.
Summing up, the procedure technique allowing the possibility of a dynamic distribution of the responsibility for the burden of the proof in view of a greater or smaller "easiness" of a certain party to produce a certain piece of evidence, defined at an early stage of the proceeding, with the purpose of providing for the best means of search for the actual truth and a reduction in the duration of the cases, will require that our honorable judges exercise additional caution; they should not adopt this procedure only for the purposes of expediting the process.
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.