“After STJ and CNJ, the fight against abusive litigation needs to go through the OAB.”
Publication by Portal Conjur featured comments from Partner Aline Rossi.
FALSE CLAIMS
After STJ and CNJ, the fight against abusive litigation needs to go through the OAB.
By: Danilo Vital
By allowing judges to require the parties to provide supporting documents whenever abusive litigation is suspected, the Superior Court of Justice (STJ) aligns efforts with regulations that curb this practice. These measures are positive but not enough, since the fight also needs to involve the legal profession itself.
This is the view of lawyers interviewed by the electronic magazine Consultor Jurídico regarding the thesis approved by the Special Court of the STJ in a ruling concluded last Thursday (03/14).
The court ruled that judges may require the amendment of the initial petition to demonstrate the interest to proceed and the authenticity of the claim. This could include asking lawyers for documents such as an updated power of attorney or initial evidence like bank statements.
The measure aims to prevent lawyers from filing baseless lawsuits with fake documents, often without the knowledge of the citizens represented—a phenomenon experienced nationwide.
The debate on this topic raised concerns among lawyers, expressed in a public hearing at the STJ. There was fear that such requirements might hinder lawyers’ work or restrict access to justice.
This concern was dispelled by how the STJ handled the matter. The thesis is balanced, notably by requiring that any decision ordering an amendment to the initial petition be properly justified by the judge.
The Special Court followed the approach adopted by the National Council of Justice (CNJ), which issued a recommendation on abusive litigation in 2024. Now, according to professionals consulted by ConJur, the legal profession itself must better combat the problem within its ranks.
Time for the legal profession
Daniel Gerber, founding partner of Daniel Gerber Advogados and specialist in mass corporate law and corporate criminal law, highlights that the ruling marks another milestone in combating abusive litigation. However, without defining punishments, including by the professional regulatory body, it will be difficult to eradicate the practice.
“Predatory litigation has become a constant market in the Brazilian Judiciary, causing harm to companies, to the judiciary itself, and to society. The omission of public bodies in combating this criminal form of action must not be encouraged; on the contrary, all involved bodies — especially the OAB — must strongly combat the current scenario.”
Along the same lines, Aline Rossi, coordinator of Strategic Litigation at Nascimento e Mourão Advogados, states that the strict application of fines and sanctions for these litigants, as well as personal accountability for lawyers, will be more effective measures. “Fighting this practice requires a combined approach of sanctions, procedural filtering, and greater oversight of the lawyers who promote it.”
Dignity of Justice
Arthur Mendes Lobo, law professor at UFPR and partner at Wambier, Yamasaki, Bevervanço e Lobo Advogados, called the decision fair. “It preserves the dignity of Justice — a matter of public order — and it is legitimate for the judge to require any documents from parties suspected of predatory litigation, aiming to prevent acts that harm the proper functioning of the Judiciary.”
Lucas Menezes, partner responsible for strategic civil litigation at Pessoa & Pessoa Advogados, praised the fact that the STJ’s thesis upholds procedural principles of adversarial proceedings and broad defense, insofar as the judge must justify the decision. He believes this balances the right of access to justice with the need to prevent misuse of the process as an instrument of abuse.
“Considered in isolation, the understanding is not sufficient to eradicate abusive litigation, since this practice requires continuous effort and complementary measures such as imposing harsher sanctions and modernizing procedural screening mechanisms. However, it undoubtedly represents an important judicial precedent, serving as a milestone in building a more efficient judiciary committed to procedural good faith.”
José Miguel Garcia Medina, director of Medina Guimarães Advogados, also praised the thesis established by the STJ but added a caveat: it is not sufficient. According to the lawyer, the possibility of requiring an amendment to the initial petition will not combat all types of abusive litigation. He cited as an example the so-called “judicial harassment,” in which multiple identical lawsuits are filed across various parts of the country against a single person, thereby compromising their ability to defend themselves.
“The thesis is quite clear, and it seems to me the STJ is heading in the right direction. However, the possibility of requesting an amendment, although appropriate, may not be sufficient. The idea should not be limited to what is stated there; amending the petition may be useful, but it does not solve all problem modalities. If there are many actions against one person, filed strategically, other measures would be necessary.”
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Portal Conjur, March 14, 2025, 5:42 p.m.
