The Brazilian Appellate Procedure Through Common Law Lenses: How American Standards of Review May Help Improve Brazilian Civil Procedure

In this article, I discuss a flaw in Brazilian civil procedure observed in my practice as a Federal Labor Judge in Brazil, an issue that may be addressed by limiting appellate review in a similar fashion as the American courts do, using standards of appellate review. In Brazil, appellate courts tend to ignore the lower court’s decisions, replacing them for the ruling they would have made had they been the original decision makers. A simple disagreement with the lower court’s findings of fact or discretionary rulings, no matter how reasonable, is sufficient grounds for reversal. The lack of standards of review results in duplication of the trial court’s work at the appellate level, and provides excessive incentives for the parties to appeal. Parties often gamble for a different judgment, given the high odds of reversal that result from the lack of deferential standards of review. With such restrictive standards, the quantity and processing time of appeals would likely decline, relieving the overburdened Brazilian courts. The introduction of standards of review in Brazil would not face legal impediments. They are consistent with constitutional due process guarantees, such as the reasonable duration of process, and with the recent statutory reforms that limit the types and scope of appeals, and strengthen precedents. Additionally, the lack of an express statutory basis does not prevent Brazilian courts from performing a more deferential appellate review, notwithstanding the desirability of a nationally binding statute or court regulation, to achieve consistency. Changes in legal culture, such as the long-standing unrestricted appellate review in Brazil, are not easy, but the resulting flood of often trivial appeals impose a change in that paradigm