Tutela de evidência a análise econômica do direito processual de riscos

Abstract

In a dynamic society, time is surely a kind of wealth. This is still true when it comes to litigation. Especially in civil law countries, plaintiffs are only granted what they pursue in court after a long judicial procedure that comprises the defendant s hearing and the analysis of factual findings. However, it turns out that when the plaintiff proves his right at the very beginning of the trial, this time-consuming process is not only unfair to the plaintiff, but also inefficient to the Judiciary Branch as a whole. That s mainly a result of defendant s behaviors intended to protract the final resolution of the lawsuit, even when he knows that the other litigant s claim is right. In those cases, preliminary injunctions not always suffice given the strict, urgency-related requirements they usually entail. In an attempt to properly address the issue, the draft of the new Brazilian Civil Procedure Code has provided for a new sort of injunction ( tutela de evidência ) meant to reasonably allocate the cost of time to each one of the parties. The underlining assumption is that in all judicial procedures there is a tradeoff between the risk of judgment error (due to the lack of information) and the risk of delaying justice (due to the time extent). Drawing on Law and Economics premises, this work sets forth some guidelines as to how to manage those risks fairly and efficiently.