BRAZIL Law and Practice Contributed by: Arthur Villamil, Villamil Advogados
For complimentary information, see 1.1 General Characteristics of the Legal System , 4.1 Inter- im Applications/Motions , 5.1 Discovery and Civil Cases and 5.4 Alternatives to Discovery Mechanisms for details on trial proceedings. 7.2 Case Management Hearings Oral evidence is widely accepted in Brazilian civil procedure. There are essentially two types of oral testimony: witness testimony and the per- sonal testimony of the parties. Each party may present up to ten witnesses. Ten witnesses may be presented in complex cases. Additionally, there is the possibility of questioning an expert during a hearing. Oral evidence is gathered during a hearing spe- cifically scheduled by the judge for this pur- pose. In appellate courts, during the hearing of appeals, it is also possible for the parties to present oral arguments, with each party typical- ly being allotted 15 minutes to summarise their case before the court during the hearing. How- ever, the examination of witnesses or experts is not permitted at the appellate stage before the court. The production of evidence must always and exclusively occur in the first instance. 7.3 Jury Trials in Civil Cases Civil and commercial cases are not subject to jury trials 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 admissi- ble 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 Procedure. 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 evi- dence, including ordering additional evidence or requesting specific documents if necessary for a fair judgment; • document authentication and witness exami- nation; and • expert evidence, for technical or specialised issues. 7.5 Expert Testimony Expert testimony is permissible. Experts are appointed by the court, either independently or at the request of a party. Their role is to pro- vide impartial analysis and insights into tech- nical questions posed by the court or parties. Experts compile their findings into a detailed report, which may include recommendations or explanations as requested. 7.6 Extent to Which Hearings Are Open to the Public Hearings are generally open to the public, fol- lowing the principle of transparency in judicial proceedings. This openness is meant to ensure that the judicial process is accessible and that justice is administered in a way that is visible to society.
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