Collaboration between lawyers in times of pandemic

The moment is still one of anguish. The pandemic causes worry and severely affects the lives of the population.

It is no different for lawyers, who for weeks have been suffering the consequences of procedural deadlines being suspended (National Justice Council (CNJ) Resolution 313/20). It should be remembered that lawsuits have not been suspended (Article 313, VI, of the Code of Civil Procedure (CPC)).

Regardless of all the inconvenience, this period of isolation brings something rare to lawyers’ lives: time. Time to reflect, reassess strategies, think about new opportunities, plan challenges, communicate with clients and, principally, envisage solutions in an attempt to move lawsuits forward.

It is important to highlight that (electronic) jurisdictional activity has not been paralysed. The distribution of legal proceedings continues as normal, as well as the publication of legal acts (although without initiating deadlines), and the issuance of court orders for payment (the importance of which goes directly into the beneficiary’s account).

Moreover, virtual sessions are regularly taking place in the courts, including the higher courts (see, for example, Resolution STJ/GP no. 9, of 17 April, 2020) and some private meetings between judges and lawyers have been held by videoconference call/telephone, especially in urgent cases.

Incidentally, it should be remembered that the suspension of deadlines does not prevent urgent acts (requests for preliminary injunctions, for example), which, incidentally, is expressed in Article 5, sole paragraph, of CNJ Resolution 313/20 and in Article 314 of the CPC.

Likewise, it is perfectly possible for the parties, through their lawyers, to seek to

reach agreements, minimizing the effects of delay (often harmful to both parties: think of a creditor who has to wait to receive and a debtor who suffers the effects of interest and monetary restatement).

Note, however, that such agreements need not be limited to the merits of the dispute itself. They may also involve changes in the processing of the case, as well as in the parties’ procedural burdens, powers, options and duties (Article 190 of the CPC).

But, to do so, the parties’ interactions (not necessarily “interests”) must be converged. Indeed, especially in this period of crisis, the idea of cooperation between lawyers (Article 6 of the CPC) has gained mass, which can ensure greater flexibility and dynamism in lawsuits.

Within this spirit of collaboration, it is possible to agree on early compliance with procedural deadlines (currently suspended); customise the proceedings (requesting, for example, the reversal of the order of some evidence); and agree deadlines for future expressions of opinion (petitions for evidence, opinions on expert reports, answers/replies to counterclaims, etc.).

In such cases, the judge does not, strictly speaking, need to ratify the procedural agreements (Articles 190 and 200 of the CPC), and autonomy of will prevails.

On the other hand, it is possible to ask the judge to carry out procedural acts by videoconference call (conciliation/mediation hearings; hearings for the parties' personal testimony, among others). Incidentally, many articles of the CPC support the use of technological means (Articles 236, §3, 385, §3, 453, §1, 461, §2, etc.).

In the same vein, the parties may request that rapporteurs include their appeals on the agendas for virtual judgment, especially in cases where oral argumentation is not intended (even though there is legal provision). In this situation, written allegations can be sent electronically to judges, including videos recorded and inserted in a QR Code.

In addition, the parties may suggest and establish, together with the judge, a procedural calendar (Article 191 of the CPC), defining a sequence of acts and deadlines for the lawsuit. As is well known, the calendar binds the parties and the judge, dispensing with the notification of the parties to carry out procedural acts and attend scheduled hearings.

Nevertheless, they can consensually delimit the issues of fact and law for due judicial ratification (Article 357, §2, of the CPC), which contributes significantly to the progress of the lawsuit, since it minimizes the chances of possibly deviating from the path.

It should be noted that the convergence of lawyers’ work also has a positive side effect, since working together on a collaborative basis can be rewarded by the judge at the time of setting the fees for losing the case (“degree of professional care”; “work carried out by the lawyer”- Article 85, §2, of the CPC), benefiting, furthermore, both legal representatives (in the event of the case being lost reciprocally).

Furthermore, for those lawyers who charge for procedural stages, it is crucial that the lawsuit progress for them to receive their fees.

In short, it is time to explore the full potential of the normative system and foster interaction between lawyers.

The pandemic has not frozen lawsuits, nor can it freeze the work of lawyers, who, with skill and in a coordinated manner, can generate interesting solutions, while at the same time preserving the legitimate rights of their clients and their own interests.