BRAZIL Law and Practice Contributed by: Arthur Villamil and Yuri Luna Dias, Villamil Advogados
Alternatives to Discovery Mechanisms for details on trial proceedings. 7.2 Case Management Hearings Oral evidence is widely accepted in Brazilian civil pro- cedure. There are essentially two types of oral testi- mony: witness testimony and the personal testimony of the parties. Each party may present up to ten wit- nesses. Ten witnesses may be presented in complex cases. Additionally, there is the possibility of question- ing an expert during a hearing. Oral evidence is gathered during a hearing specifically scheduled by the judge for this purpose. In appellate courts, during the hearing of appeals, it is also pos- sible for the barristers to present oral arguments, with each party typically being allotted 15 minutes to sum- marise their case before the court during the hearing. However, the examination of witnesses or experts is not permitted at the appellate stage before the court. The production of evidence must always and exclu- sively occur in the first instance. 7.3 Jury Trials in Civil Cases Civil and commercial cases are not subject to jury tri- als in the Brazilian system. 7.4 Rules That Govern Admission of Evidence All evidence must be lawful, as evidence obtained through illegal means is not admissible in Brazilian civil procedure. The invalidity of such evidence can result in the annulment of the entire proceedings. The admission of evidence at trial is governed by important principles outlined in the Code of Civil Pro- cedure. The key rules include: • relevance and necessity; • legality of evidence; • burden of proof (generally, the burden of proof lies with the party asserting a fact. Plaintiffs must prove their claims, while defendants carry the burden of proving their defences. In some cases, the burden may shift if one party has better access to specific information); • a judge’s role in evidence collection (Brazilian judges play an active role in managing evidence), including ordering additional evidence or request-
court directives. These orders do not typically impose direct liability or obligations on third parties but rather require their co-operation to implement the injunc- tion or to provide information, as with banks freezing accounts or telecom companies restricting access in compliance with the court’s order. 6.7 Consequences of a Respondent’s Non- Compliance Non-compliance with an injunction can result in fines and other court-imposed measures to enforce adher- ence to its terms. Brazilian civil procedure is primarily written, with oral submissions being admitted as an exception. The pro- cess begins with the presentation of the initial petition, which will be assessed by the judge. If there is regu- larity and the legal and procedural requirements have been met, the judge will order the defendant to be summoned to present a defence in accordance with the deadlines set for each type of procedure. Once the defence has been presented, the plaintiff will be summoned to speak out and then the judge must resolve the case, analysing all the preliminary issues and possible causes for the termination of the case, as well as fixing the controversial points of the case on which the parties must produce the evidence, if and as granted by the judge. 7. Trials and Hearings 7.1 Trial Proceedings The judge is the director of the process and the recipi- ent of the evidence in a typically inquisitorial process. Evidence can be documentary, oral or technical. Doc- umentary evidence consists of written documents, photographs, audio and video recordings, among oth- ers. Oral evidence may be statements and hearings of the parties, which will always be collected by the judge in a specific hearing for that purpose. It is also possible to produce expert evidence, carried out by a court-appointed expert. For complimentary information, see 1.1 General Char- acteristics of the Legal System , 4.1 Interim Applica- tions/Motions , 5.1 Discovery and Civil Cases and 5.4
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