First and foremost, a procedural document symbolizes the most important tool a lawyer can use to express interests in court.
Indeed, when drafting a legal document, a lawyer must combine elements such as neat writing, objectivity, persuasiveness, and most importantly: adherence to the form prescribed by law.
Therefore, deviation from or non-compliance with formal requirements may lead to the annulment of the procedural document.
What is a procedural document?
In short, a procedural document is an instrument that triggers judicial protection and serves for the lawyer to present interests in court and express their views during the course of a legal proceeding.
Although there are various names for procedural documents, each one has a different purpose in the process. In other words, the lawyer must always consider the procedural stage and the circumstances under which it is applicable, in order to know which procedural document to prepare.
When and how to draft an initial petition?
In summary, Article 319 of the Brazilian Code of Civil Procedure ( CPC/2015) lists the requirements for drafting an Initial Petition, the document that initiates the entire legal process, which are:
"I - the judgment to which it is addressed;
II - the names, first names, marital status, existence of a stable union, profession, registration number in the Register of Individuals or in the National Register of Legal Entities, the electronic address, domicile and residence of the author and of the defendant;
III – the fact and the legal basis of the request;
IV – the order with its specifications;
V – the value of the claim;
VI – the evidence with which the author intends to demonstrate the truth of the alleged facts;
VII – the author's option regarding whether or not to hold a conciliation or mediation hearing”
In this regard, it is pertinent to highlight the understanding of the legal scholar. Alexandre Freitas Câmara:
" The initial petition is a document that must fulfill a series of formal requirements, without which the valid and regular development of the process is not possible."
Let us now examine what each of these requirements represents in an initial petition, one of the most important procedural documents in court.
ADDRESSING
Firstly, in a procedural document, this requirement is linked to the jurisdiction of a judicial body to judge the action being brought, that is, the court to which it is addressed.
It is also worth highlighting that, unlike the 1973 Code of Civil Procedure, the 2015 Code of Civil Procedure now stipulates that the initial petition must be addressed to the COURT and no longer to the JUDGE as an individual.
According to the work "Comments on the Code of Civil Procedure ," the distinguished legal scholars Angélica Arruda Alvim, Araken de Assis, Eduardo Arruda Alvim, and George Salomão Leite agree that:
“The initial petition must indicate the court to which it is addressed. Instead of using the expression 'judge or court', contained in the CPC /73 (…)
Even if the judge is known in a case involving a court of first instance or a single-judge court, they should not be named; it is sufficient to indicate the court to which the initial petition is addressed.
QUALIFICATION
In short, this is the part of the initial petition where the parties will be identified.
Therefore, the following information must be included in the legal document: the names, surnames, marital status, existence of a stable union, profession, taxpayer identification number (CPF or CNPJ), email address, domicile, and residence of the plaintiff and the defendant.
In short, the purpose of qualification is to individualize the identification of the parties as much as possible, to avoid confusion with people who may have homonymous data.
FACTS AND LEGAL BASIS
Like any legal document, the initial petition must present a narrative of the facts that led to the creation of that lawsuit.
Similarly, the mere existence of the concrete situation is not enough; the right being claimed must also be grounded in law, case law, or legal doctrine.
This demonstration can be made by transcribing articles, case law, and legal doctrines that support what the author is alleging in their interest. Indeed, this support can help the author to have their requests granted by the judge.
ORDER
When a party, through an initial petition, invokes the Judiciary, there is a claim that could not be achieved through their own efforts . This claim is the request made in the procedural document.
From this perspective, the petition may contain numerous requests, provided that all of them are specified/determined. Except in the situations outlined in Article 324 of the Brazilian Code of Civil Procedure (CPC/2015), where the request may be generic.
"I - in universal actions, if the plaintiff cannot specify the assets claimed;
II – when it is not possible to determine, from the outset, the consequences of the act or fact;
III – when the determination of the object or the value of the judgment depends on an act to be performed by the defendant.
Furthermore, outside of these situations, orders should always be precise and specific , accurately expressing their content, as well as specifying the quantity and quality.
VALUE OF THE CASE
In short, the value of the case is a potential economic benefit that the party wishes to receive from the lawsuit.
Specifically, the value of the claim is a mandatory requirement of the initial petition, as it also serves as a criterion for determining jurisdiction (for example, the State Special Courts, which only hear cases whose value does not exceed 40 minimum wages).
EVIDENCES
Evidence consists of the means by which the plaintiff can prove the facts alleged in the initial petition. It can be documentary, expert, or testimonial – the important thing is that the plaintiff specifies in the document by what means they intend to prove the facts.
Specifically, the expression " protests by all means of proof admitted by law" is very commonly used.
OPTION FOR A CONCILIATION OR MEDIATION HEARING
Finally, in the initial petition, the plaintiff must state whether or not they wish to participate in a conciliation and mediation hearing, an opportunity for the parties to reach an agreement and not proceed with the case.
The closing thought
Finally, having outlined all the requirements for drafting an excellent initial petition, it's clear how important it is to observe what the law stipulates regarding its form.
Therefore, lawyers must always align their writing and persuasion techniques with the requirements stipulated by law.
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