The distorted use of the judicial system, known as abusive litigation, has gained increasing relevance in academic and institutional discussions surrounding the rise of judicialization in Brazil. This practice, marked by the intentional and dishonest use of procedural mechanisms for purposes contrary to good faith, is now recognized as one of the factors deepening the structural crisis faced by the Judiciary.
To litigate, in its noblest sense, is to exercise the right of action to resolve conflicts in a civilized and fair manner. However, when this right is exercised with ulterior motives—such as delaying decisions, pressuring opponents, or simply overloading the courts—the legal process ceases to be a tool of justice and becomes an instrument of abuse.
This issue is far from isolated. It is a systemic and growing practice, with direct effects on the quality and speed of judicial services. In 2023, according to the National Council of Justice (CNJ), Brazil recorded 84 million ongoing cases, with 35.3 million new lawsuits filed that year alone—the highest number in the historical series. And this in one of the most productive judicial systems in the world.
It is not merely a performance issue. It is, above all, a demand problem.
What are the most common forms of abusive litigation?
Frivolous litigation, for instance, occurs when a party files lawsuits without any legal basis, merely to try their luck or force a settlement. Unnecessary litigation involves cases that could be resolved through other means but are brought to court due to ease and low cost. The most severe form, predatory litigation, is characterized by abusive or even illegal client solicitation, resulting in the mass filing of identical or baseless lawsuits.
All these practices contribute to a slower, more expensive, and less accessible system—especially for those who genuinely need justice.
How is the Judiciary responding?
The CNJ has taken action. Three recent measures stand out: Strategic Guideline No. 7/2023, aimed at monitoring and identifying abusive patterns; Guideline No. 6/2024, which proposes an integrated and preventive institutional approach; and Recommendation No. 159/2024, which defines the technical and conceptual contours of abusive litigation and proposes concrete measures to combat it.
These guidelines demonstrate institutional maturity. However, their effectiveness depends on the joint efforts of judges, lawyers, prosecutors, court staff, and society itself. It is necessary to promote a culture of responsibility in the use of judicial processes.
Litigating is a right—but it is not a free pass to distort justice for personal gain. When the system is used as a tool for blackmail, delay, or intimidation, everyone loses: the Judiciary, the State, and the ordinary citizen awaiting a fair resolution.
Combating abusive litigation is, above all, about preserving the integrity of justice. And this requires not only regulations but also ethical awareness, institutional commitment, and coordinated action.
Autor:
