A tomada de decisão recursal. Influxos do princípio dispositivo e do efeito translativo sobre o viés recursal das partes

Abstract

The paper aims to demonstrate that the decision to appeal is substantially influenced by the interrelation between the dispositive principle and the translative effect, two doctrines that, although belonging to the normative sphere of civil procedure, decisively impact the parties’ motivation to file appeals. This influence is mediated by economic and psychological factors, which constitute the so-called appellate biases – particularly those arising from the heuristics of availability and representativeness, which distort the perception of risk and benefit, thereby altering the appellate strategy adopted by the litigants. The dispositive principle ensures that the matter to be examined by the court is limited to what has actually been presented by the parties, restricting judicial intervention to this previously delineated scope. The translative effect allows the reviewing body to ex officio consider public order issues not challenged by the parties, thereby broadening the scope of the review and, consequently, increasing the uncertainty regarding the appeal’s outcome. We attempt to demonstrate that the expansion of the appellate object is a crucial factor affecting the parties’ decisions, contributing to the formation of an appellate bias that may either discourage the filing of appeals or, alternatively, encourage their use in a dilatory manner. Economic analysis of law is employed in the research to show that the decision to appeal is not based solely on purely legal considerations but also on a cost-benefit analysis in which the litigant weighs financial costs, procedural expenses, and the risks associated with the potential alteration of the lower court’s decision. This economic perspective complements the analysis of cognitive biases, as the perception of costs – both financial and psychological – may be distorted by the ease with which previous cases are recalled, thereby amplifying the availability bias. The paper investigates issues related to legal certainty and procedural efficiency. By permitting the reviewing court to examine ex officio issues not challenged by the parties, the appellate system may create an environment of uncertainty that undermines litigants’ confidence in the stability of judicial decisions. This uncertainty, in turn, affects the decision to appeal, as the party begins to fear that, by seeking a review, its situation may be further aggravated, thus representing an unanticipated additional cost. Finally, we conclude that the integration of mitigating measures – including the disclosure of appellate indexes, the restructuring of conditions for access to legal aid, and the reduction of broad legal contracts – can create a more balanced and predictable appellate system. In such a system, the influence of the availability and representativeness biases is minimized, thereby fostering an environment in which litigants, supported by objective data and robust economic analysis, adopt more rational and less dilatory appellate strategies, ultimately contributing to the improvement of the procedural system.