Interview with Ronaldo Cramer, vice-president of the Rio de Janeiro branch of the Brazilian Bar Association, offered to Rodrigo Moreira and Lucas Mendes, members of the Arbitration Commission of the Rio de Janeiro branch of the Brazilian Bar Association.
Mr. Cramer is a partner at Nunes Ferreira, Vianna Araújo, Cramer, Duarte Advogados and played an important role in the enactment of the new Civil Procedure Code, which, he posits, was much influenced by the arbitration culture.
COMMISSION: Is it true that the new Civil Procedure Code (CPC) was influenced by the “arbitration culture”?
RONALDO CRAMER: Yes. The procedural law now pays regard to the parties’ intent and recognizes its relevance throughout the proceedings, especially where there is a “procedural agreement” (negócio processual), a tool that is definitely derived from arbitration practice. If, nowadays, our Code of Civil Procedure allows the parties to negotiate and agree upon the development of the proceedings, this is certainly due to the fact that the experience in arbitration demonstrated that this works.
COMMISSION: Do you believe that this culture will be adopted by the Judiciary?
CRAMER: It has to be, since it is the law. Article 190 of the new CPC provides that the procedural agreement is considered atypical. Hence, in principle, there are no limits for the parties to adjust the procedure according to their needs. Besides, there are other typical procedural agreements that can be found throughout the CPC, such as: (i) the agreement that allows the parties to choose the expert and (ii) the agreement that allows the parties to define the subject matter of the procedure in the interim decision that regulates the taking of evidence. This is very interesting, since parties will be able to define what evidence is going to be produced and what questions must be decided in the proceedings. These rules are not unconstitutional, and I do not see any reason why they cannot be applied. There could be, however, some level of unawareness by the practitioners in the beginning, and so such rules may not be so efficiently relied upon. That is why we need to explain the new CPC to the practitioners, so that the procedural agreement becomes part of the legal culture with time.
COMMISSION: Do you believe new ethic issues will arise in the advocacy practice?
CRAMER: The new CPC expects cooperative proceedings that evolve in accordance with the principle of good faith. This cooperation is influenced by arbitration, where there is no state to determine what is to be done. In arbitration, a party can frustrate a procedure if it does not cooperate, which raises ethical limits that, if crossed, can affect the lawyer’s reputation in the arbitration market. The experience of arbitration, where the lawyers are expected to be less belligerent and parties, at some point, cooperate to the development of the procedure, was taken to the judicial process, which will also raise some ethical limits to the parties and its representatives. The good faith principle, which forbids a contradictory behavior from the parties, will certainly demand a higher level of ethics than the simple compliance with the forms of the Code of Civil Procedure.
COMMISSION: The new CPC allows for the cross-examination of witnesses, as it happens in arbitration. How does it work?
CRAMER: The new CPC ended with the “re-questioning” system. In the old model, a party, through its lawyer, would ask the questions to the judge, who would direct it to the witness, depriving the question of its “surprise effect.” Therefore, the lawyer could not use instruments of persuasion during the questioning to cause the witness to confess or to fall in contradiction.
The old system adopted a “publicist” logic, where the judge had wide discretionary powers in the process ‑ being able to fill parties’ omissions and conduct the hearing and being able to ask questions to the witnesses – even in a purely repetitive manner. This system no longer exists. We are heading toward a system inspired by US-style litigation, where the lawyer asks the questions directly to the witness, being able to use techniques to obtain the most from the testimony.
COMMISSION: The “cross-examination” is a common practice in international arbitrations that is increasingly becoming present in domestic arbitrations, where oral evidence is essential to persuade the arbitrators. Do you believe that the oral evidence will become more important in the judicial process?
CRAMER: Oral evidence indeed became more relevant in the new CPC. In the old CPC, the judge would start asking his questions to the witness and only after that would the lawyer be given the opportunity to ask questions. In my understanding, the CPC allows the lawyer to create a questioning strategy and the judge should respect it. It is the logic of party autonomy, where the parties in the process matter as much as the judge does. The witness, therefore, belongs to the party, who should start asking questions in order to implement its strategy of persuasion.
It is important to highlight that this was much more influenced by arbitration than by the US-style litigation. We saw that the experience of the direct questioning by the lawyers works in arbitration, which makes it safe for the civil procedure law to follow the same path.
COMMISSION: The cross-examination practice in common law countries tends to be more aggressive, where the witnesses are put under severe pressure. What are the limits for the lawyers to directly question witnesses in Brazil?
CRAMER: I believe the limits are less strict than before, when the judge would replicate the questions made by the lawyer, sometimes making formal adjustments that limited such questions. Now, the lawyer will be able to use techniques to ask questions, using tone, repetition and body language, among others. The limits, therefore, will be reduced. However, as the CPC does not impose any restrictions, the standards for the lawyer’s behavior will be built in practice, with time.
COMMISSION: Could Brazilian lawyers take any training to develop these skills?
CRAMER: The average Brazilian lawyer is not very skilled when dealing with the taking of evidence. The reason is that the evidence-gathering process in the lower court only takes place after the replies are filed. In other circumstances, the case may be summarily judged even before the evidence is taken. After this point, it seems that Brazilian lawyers let the case be conducted solely by the judge. Few Brazilian lawyers pay as much attention to the taking of evidence as do the American lawyers. Brazilian lawyers should be prepared to get as much evidence as possible. As regards oral evidence, Brazilian lawyers should study the witness, learn their weak points, know what makes them “shake” or fall in contradiction. This is not mere intuition. It takes more than just reading the case files and asking questions based only on the witnesses’ “looks.” A lawyer should be aware of how the witness is connected to the facts and to the parties, and ask questions according to his or her preparatory studies and strategy.
COMMISSION: As no one learns how to ride a bike just by reading books, do you believe practical exercises would be useful for lawyers to learn these inquisition techniques?
CRAMER: I believe so. We need training, since these skills are not part of our legal culture. It is important to set up laboratories in universities or other institutions. As the Rio’s branch of the National Bar Association offers a practical arbitration course, maybe we could think about a practical course focused on hearings in judicial process, so the lawyer can learn how to perform this work, how to ask questions with strategy and how to answer to provocations, etc.
It is common that people prepare for the oral pleadings before the high courts. The hearing, on the other hand, does not seem to deserve the same attention, even it being a very important and complex stage of the judicial process. It is even common for lawyers to ask to be replaced by other counsel. That should not happen. That is unlikely to happen in arbitration, since a lawyer would not ask an alternate to fill in for a hearing, as he or she normally knows the hearing’s importance for the procedure.