Access to justice has been one of the keystones of the main international charters since the 1948 Universal Declaration of Human Rights. As a result, it has achieved the status of fundamental guarantee in Constitutions around the world.
With the end of laissez-faire, concerns have mostly geared towards the social (collective) level of the society and, to that extent, the simple formal concept of access to the Judiciary has become something broader and more effective, called access to justice. Within this historical background, this concept has developed a more effective approach, detaching from the previous formal approach, with the State ceasing to be in a second role to become the real social change-maker.
It has been clear since then that such right can no longer be reduced, purely and simply, to access to the courts. It should be understood as being the straight line – the surest, shortest, and safest way – between the entry and exit points of the Judiciary Branch.
It turns out that this transition to the Welfare State represented an opening to an infinitely greater number of processes and, as a result of this solution, a new issue has arisen, namely, the right to a fair and timely decision.
Since then, this unbridled increase in lawsuits has contributed to the intensification of the so-called “Crisis of the Judiciary,” to the extent that access to justice has itself become a problem by allowing the overuse of the judicial structure.
In effect, Brazilians have never had access to justice as much as they do today. According to the most recent figures from Justiça em Números[1], on average, for each group of 1,000 inhabitants, 127 filed a lawsuit in 2022 and the Judiciary ended 2022 with 81.4 million cases in progress, awaiting some definitive solution.
This volume means that, even if there were no new lawsuits and the level of outputs were kept consistent, it would take about 2 years and 8 months of work to fulfill such a challenging mission.
Admittedly, there are numerous factors that contribute to over-judicialization. However, one cannot take for granted the fact that there is a common point of intersection between both phenomena: the ease with which someone resorts to the Judiciary for relief.
In other words, the easy access to the Judiciary, previously aimed to guarantee and fulfill social achievements, now imposes on it the duty to not only facilitate the filing of legitimate lawsuits, but also the burden of receiving predatory actions, that is, the filing of a large number of similar or identical actions by the same lawyer or law firm, based on generic narratives and guidelines, with possible flaws or gaps in the complaints, and typically designed to obtain undue amounts, which are often not entirely passed on to plaintiffs, regardless of ruling that partially or fully finds for them.
According to technical notes produced by the Intelligence Centers of Courts of Appeals TJMT, TJMS, TJBA, TJRN, TJPE, and TJMG, some of the indications of predatory or fraudulent lawsuits perceived by the courts are as follows: high amounts which are disproportionate to the statistical records of lawsuits filed by plaintiffs residing in other judicial districts/subsections; complaints accompanied by the same proof of residence for different lawsuits; complaints without minimum supporting documents of the allegations or documents not related to the cause of action; generic powers of attorney, answers, and appeals; and the assignment of identical lawsuits.[2]
In this vein, the facilities created by access to justice were found to fuel a new irresponsible culture called predatory litigation, with significant direct or indirect costs to the treasury, and to the judicial system itself, which is overloaded, thus ultimately depriving legitimate plaintiffs of access to fast and effective justice, thus leading to the burden of overflow by socializing the costs and privatizing the gains.
And granted that for complex problems there are no simple solutions, and that it is not the ease of access to justice that should be fought, but rather the access by illegitimate lawsuits, the Judiciary has been taking measures to curb and/or mitigate such wicked practice.
Among several efforts, Strategic Guideline No. 7, of 2023, for the Disciplinary Boards, stands out in its aim to “Regulate and promote practices and protocols to combat predatory litigation, preferably with the creation of electronic means for monitoring processes, as well as transmitting the respective information to the Disciplinary Board of the Courts, with a view to feeding a single panel, which should be created for this purpose.” As a result, many Courts are developing an intelligence center aimed to monitor and fight against predatory lawyering.
Therefore, to equalize such a situation, one should depart from the understanding of the present-day paradox that, to ensure wider access to justice, some restriction of access should be implemented.
[2] https://www.cnj.jus.br/programas-e-acoes/litigancia-predatoria/
Autor: Guilherme da Costa Ferreira Pignaneli • email: guilherme.pignaneli@ernestoborges.com.br
