Civil Procedure

1. João Furtado Guerini
Samuel Meira Brasil Jr.
Vitória Circle Research Group Gödel Institute, FDV
Vitória Law School, Brazil.

2. 
 AMERICAN RULE: each party remains responsible
for the payment of the attorney fees of his/her hired
lawyer, regardless of the outcome of the legal action.
 ENGLISH RULE: the expenditures and fee charges
incurred by the successful party as attached to
his/her lawyer must be reimbursed by the losing
party at the end of the process.
Attorney Fee-Shifting:
two differents way

3. 
 Contractual Fees: corresponding to the agreed
remuneration for that portion attached to the lawyer
in relation to the consideration of the legal services
offered by the final legal billings.
 Attorney Fees of Loss: fixed at the end of the
proceeding along the allocation of responsibility for
procedural costs to the losing party.
Brazilian System: two
kinds of “attorney fees”

4. 
 According to Art. 20 of the Civil Procedure
Code/1973 the defeated party’s fees should be fixed
at the end of the proceeding with the objective of
ordering this to amount to be viewed as a
reimbursement to the winner with regard to the
expenditures combined with his/her lawyer.
 Indemnity Nature: adoption of “English Rule”.
Attorney Fees of Loss in
CPC/73

5. 
 The systematization and the proper scope for which the
fees from the defeated suffered major design changes in
relation to the provisions in the statute of the previous
civil procedure.
 This is because, currently, as provided pursuant to Art.
85, despite the defeated being awarded in judgment for
the payment of fees in defeat, the holder of this credit is
no longer the prevailing party, but his/her lawyer:
CPC/15-"Art. 85. The judgment will award the loser to
pay the attorney fees of the winner.
 Legal Nature: divergent and obscural.
Attorney Fees of Loss in
CPC/15

6. 
 Before all the above about the shifting of attorney
fees and costs to the defeated party, verifying what
was once an institute design with the scope of
indemnification of the prevailing party of incurred
expenditures with the lawyer, transmuted to the
institute whose objective is to solely benefit the
lawyer of the winning party with a second source of
remuneration beyond what he/she was necessarily
entitled to receive from the client under the heading
of contracted fees
Conclusions

7. 
 In consideration of all the above, this gives rise to two
premises: (i) the lawyer for the winning party will always
receive a double payment (that which he charged his
client and that which the losing party must pay under the
heading of "attorney's fees of loss"); (ii) in order for its
right to be recognized in court, the winning party will
inevitably suffer material damages about the amount paid
to its lawyer, since such values are not likely to redress
and will exist at least at the minimum level laid down in
the Table of Chargeable Fees of the OAB (BBA).
Premisses of Attorney Fee Shifting in
Brazilian Civil Procedure

8. 
 Finally, with a view to such premises, note that the
controversial rule of attorney fee shifting as adopted by
CPC/15 has unique peculiarities, not nearly approaching:
(i) not the English Rule, since, although the loser is being
penalized by the payment of attorney fees and costs in
defeat, this will not reimburse the prevailing party, but
yes, its lawyer; (ii) nor the American Rule, since as to this,
although there does not exist any reimbursement of
attorney fees, at least the losing party shall not be obliged
to pay “attorney fees of loss” to the attorney of the
prevailing party.
A unique and
controversal way