Litigation in Portugal
According to Wikipedia, Portugal established the world’s first global maritime and commercial empire. Its cultural influence extends beyond the numerous Portuguese-speaking countries of the world and its commercial exports range from cars to wine to apparel.
And yet I have never been! Before I address this grave injustice, however, I wanted to learn more about what litigation is like in the country. So I spoke with Gonçalo Gomes, a lawyer at Caiado Guerreiro in Lisbon, to share his perspective on litigation there.
Why should you continue reading this post about litigation in Portugal?
You are very curious about the similarities and differences between litigation in Portugal and in Brazil. And you are mildly curious about any similarities and differences with litigation in Saudi Arabia or Ethiopia.
You heard that Madonna moved to Portugal and you want to sue her there because you claim that you actually wrote Like a Prayer and you want credit.
You’re interested in seeing a toga picture!
Gonçalo Rodrigues Gomes is an attorney at Caiado Guerreiro in Lisbon. This interview has been lightly edited.
Background
Can you tell me about the kinds of disputes you handle in your legal practice?
We aim to be a “one stop shop” law firm. Therefore, we have a wide range of departments that are composed by lawyers specialized in different areas of practice (such as commercial law, employment, pharmaceutical, tax).
Whenever a litigation case comes along that escapes the traditional scope of our main practice – focused on civil, commercial and criminal law - we work closely with said lawyers. That being side, we handle every kind of dispute.
What type of clients do you generally represent in disputes?
We have all types of clients, from individuals to large multinational companies. However, it is safe to state that our practice is mainly focused on medium and large businesses.
Besides Microsoft Office, what software do you use in your practice?
In our practice we use mostly Microsoft Office and all its resources (Excel, Outlook, Power Point).
Since the pandemic, Microsoft Teams is broadly used. Other than that we also use a Portuguese client management software called Jvris and tend to use other mainstream software.
What books and websites do you use for legal research?
Regarding legal decisions, Portugal has a public database where almost all the higher courts decisions are published and that can be accessed by anyone. Legal norms and provisions are also publicly available, on public state websites, which guarantee that the laws you are consulting (i.e. the Penal Code, Civil Code, Companies’ Code, etc.) are up to date.
On books, Portuguese lawyers tend to recur to specialized books (mostly written by renowned University Professors) depending on the subject of interest.
Image credit: https://pt.wikipedia.org/wiki/Supremo_Tribunal_de_Justiça_(Portugal)#/media/Ficheiro:Baixa_Pombalina_33833-Lisbon_(36128651271).jpg
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
In Portugal, since 2013 that all civil and commercial pleadings are filled electronically.
From the last few years, all other types of pleadings except early stages of criminal cases – i.e. administrative and tax litigation, for instance - are also filed electronically.
This is the website. However, to be able to access the area where we file the proceeding, one must be a registered lawyer in Portugal with an electronic certificate.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
It is hard to quantify the number of pages on complaints or initial pleadings that we see in our work. We have produced pleadings with over 100 pages and also some with few more than 10 pages.
Generally we would put a typical initial pleading between 20 and 30 pages.
There are no publicly available complaints or initial pleadings.
Generally speaking, how long does it take for a case to go from complaint to judgment?
Generally, about 1 year – sometimes less, sometimes a little more - to reach the early stages of judgment (preliminary hearings).
Does Portugal have a specialized court that only hears commercial cases?
Yes, we have commercial courts that handle commercial disputes and cases such as the annulment of corporate resolutions and insolvency proceedings.
I understand that Portugal has a separate constitutional court. Does this court ever hear commercial disputes?
It is correct. In Portugal we have a Constitutional Court. However our Constitutional Court does not rule on specific cases, but only on the application and content of legal norms.
That being said, a commercial case may reach the Constitutional Court if a party invokes the unconstitutionality of a legal norm contained in a legal provision, or a certain interpretation of the court on said norms.
Who decides the facts in a commercial case? Is it a judge or a jury?
A judge. Jury trials in Portugal are very rare and only reserved for criminal cases.
Generally speaking, how is evidence exchanged between the parties before trial?
There is no exchange of evidence between the parties, such as discovery in the USA.
In Portugal, all the evidence (documents) must be submitted by the parties with the procedural piece they present (either the initial application by the plaintiff, or the defense presented by the defendant) and there is no obligation on a party to reveal evidence to the other – each party decides what to submit.
And there is no formal instance of interviewing the opposing witnesses before trial.
If you win, does the other side reimburse your attorneys’ fees?
When a side wins, the other can be convicted to reimburse the court fees paid by the wining party as well as a compensation for attorney fees. However, that compensation is calculated by reference to the court fees paid by the parties and not for the real costs incurred to with attorneys. Most of the time, the compensation is not nearly enough to pay for said fees.
Are Portuguese courts open to the public? Can ordinary people watch a commercial trial?
Yes, Portuguese courts are completely open to the public (except on very specific criminal cases – involving minors, for example – or family law cases). And yes, anyone can watch a commercial trial.
What do you believe are the strengths and weaknesses of the Portuguese legal system?
I believe that Portuguese Commercial Courts are still not as well prepared as they could/should be to deal with commercial disputes – specially when it is a complex matter. Maybe one of the weakness is the fact that many judges that serve on Commercial Courts are, in fact, not specialized in commercial litigation and are still holding to normal civil cases interpretation and procedures.
In addition to admission as a lawyer, do you need to be recognized as a barrister to appear in court?
No. In Portugal there is no distinction between lawyers – as barristers or solicitors, for example. Any qualified lawyer is allowed represent his/her clients in court trials.
How often do you go to the courthouse?
As part of the litigation department of Caiado Guerreiro, I go to courts quite often, usually every week.
When you are there, do you need to wear a special robe or wig?
Yes, Portuguese lawyers, when in court, must wear a special robe, called “toga.” Example below:
