BRAZIL Law and Practice Contributed by: João Areosa, Guilherme Peres de Oliveira and Raphael Rangel, Areosa Advogados
3.6 Case Management Powers of Courts Active Judicial Management The CPC substantially expanded judicial case man- agement powers, transitioning Brazilian civil proce- dure towards a more active judicial management model while preserving civil law foundations. Judges have both the authority and the duty to manage cases actively. Procedural Management Powers The judge acts as the “conductor of the process”, actively managing it rather than passively waiting for party initiatives. This reflects a blend of civil law tradi- tions of judicial protagonism and modern case man- agement concepts. Evidence Management In collective actions, judges may order defendants to produce documents and information, even if not spe- cifically requested by plaintiffs, when necessary for adjudication; appoint expert witnesses for technical matters and formulate questions for expert analysis; conduct judicial inspections of locations, facilities or conditions; invert the burden of proof in consumer cases when technical complexity, consumer vulner- ability or claim plausibility justifies placing the burden on defendants; and limit discovery to prevent abuse, fishing expeditions or disproportionate burdens. The burden of proof inversion is particularly signifi- cant in consumer collective actions. Article 6, VIII of the CDC allows judges to invert the burden when the claim is plausible ( verossímil ) or the consumer is hypervulnerable. This shifts the burden to defendants to prove they did not cause harm, rather than requiring consumers to prove causation and fault. This powerful tool reflects the protective philosophy of consumer law and addresses information asymmetries. Interim Measures Courts have extensive powers to grant interim relief ( tutelas provisórias ): • Preliminary injunctions ( tutelas de urgência ) to prevent imminent harm or preserve the status quo pending final judgment. • Asset freezing orders to ensure future enforce- ability.
• Mandatory conduct orders requiring or prohibiting specific actions. • Anticipation of final relief ( tutela antecipada ) when the claim is legally and factually evident but formal judgment will take time. Interim measures in collective actions often involve orders to cease selling defective products, cease misleading advertising, discontinue harmful environ- mental practices or maintain public services. These orders have immediate practical impact even before final the judgment. Settlement Promotion Judges must actively promote settlement, including scheduling mandatory conciliation hearings before or during proceedings; suggesting settlement terms and facilitating negotiations; referring matters to mediation with the consent of the parties; and approving con- sent agreements (TAC) when appropriate. In collective actions, settlements require approval by the Public Prosecutor when involved, and the judge evaluates whether the settlement adequately protects collective interests. Sanctions for Abuse Courts may sanction parties, attorneys and witnesses for frivolous claims or defences made in bad faith; dilatory tactics designed to delay proceedings; evi- dence spoliation or destruction; non-compliance with court orders; abuse of procedural rights; and other bad-faith litigation conduct. 3.7 Length and Timetable for Proceedings Collective actions in Brazil are complex and time- consuming, typically taking many years from filing to final resolution. Based on empirical data and practical experience, their typical duration is as follows. First Instance (Trial Court) • Simple cases: 2 to 4 years from filing to first- instance judgment. • Moderately complex cases: 4 to 7 years. • Highly complex cases: 7 to 12 years or more. Factors affecting duration include complexity of fac- tual and legal issues; amount and nature of evidence required (particularly expert evidence); number of par-
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