An Expert Witness Guide to Justice Systems: Brazil 

By Noah Bolmer

Brazil’s approach to expert evidence assigns a central role to court‑appointed specialists while allowing parties to engage their own technical advisors. The official experts or specialists (peritos), are nominated by the judge and prepare written reports that form the basis of judicial evaluation. Alongside them, each party may appoint technical advisors (assistentes técnicos) to review and comment on the court expert’s findings. This structure places the judge at the center of the process, supported by neutral expertise but open to adversarial critique, with a strong emphasis on written submissions rather than oral testimony. 

Background 

During the imperial and early republican periods, courts operated under civil codes influenced by continental European models via Portuguese colonization, and expert input was drawn from professional and academic communities in line with other civil law traditions. In the mid‑twentieth century, the judiciary expanded its reliance on technical specialists, but procedures remained fragmented and varied across jurisdictions. The military regime that governed from 1964 to 1985 introduced centralized controls and emphasized written reports, yet expert participation was uneven and often subordinated to political priorities. With the return to democracy and the adoption of the 1988 Constitution, Brazil restructured its judiciary and formalized the role of court‑appointed experts. The system established clear rules for the nomination of experts and recognized the right of parties to engage technical advisors, creating a framework that combined judicial neutrality with adversarial review. 

Judicial Structure 

Brazil’s judicial system operates within a civil law framework that charges judges with case management and evidentiary control. In civil, criminal, and labor proceedings, judges determine when expert input is required and appoint the specialists authorized to provide it. Material enters the record primarily through written reports prepared by court-nominated experts, with parties permitted to submit commentary and counter analysis through their own technical advisors. 

The system is organized into four principal divisions with separate state versions of civil, criminal, and labor: 

• Civil courts hear disputes involving private rights, contracts, and commercial relationships. 

• Criminal courts adjudicate offenses investigated by police authorities and prosecuted by the Public Prosecutor’s Office (Ministério Público). 

• Labor courts specialize in employment disputes, reflecting Brazil’s long tradition of dedicated labor adjudication. 

• Federal courts handle matters involving federal law, government agencies, and interstate issues. Federal courts are further subdivided into Regional Federal Courts (appellate courts), superior courts which handle non-constitutional issues, and the Supreme Federal Court which is responsible for constitutional matters. 

Alongside the courts sits the Public Prosecutor’s Office (MP), a constitutionally independent body that combines prosecutorial authority with responsibility for defending collective and public interests. Its role extends beyond criminal prosecution to areas such as consumer protection, environmental regulation, and judicial oversight. While it does not direct the judge’s factfinding, its interventions can shape the scope of proceedings and reinforce compliance with procedural standards. 

Judges, attorneys, and prosecutors follow distinct professional tracks. Judges enter the judiciary through competitive examinations and receive training under the supervision of judicial schools linked to higher courts. Attorneys qualify through the Ordem dos Advogados do Brasil (OAB) bar examination, focusing on client representation and advocacy. Prosecutors of the MP form a separate career path, serving as public prosecutors but also exercising broad powers to initiate civil actions, monitorinvestigations, and challenge procedural irregularities. 

Court‑Appointed Experts   

When a Brazilian judge determines that a case involves technical or specialized issues beyond their own expertise, they appoint an expert. Similarly, parties may request a court-appointed expert. This is common in areas such as: 

• Construction defects 

• Medical evaluations 

• Financial audits 

• Forensic examinations 

Experts are typically drawn from recognized professional bodies, and judges rely on institutional reputation and prior case experience to identify suitable candidates. The appointment is governed by procedural rules that define the expert’s mandate, limit their scope to factual clarification, and prohibit legal interpretation. Once appointed, the expert operates independently but within the boundaries set by the court. Their work may involve site inspections, technical measurements, document review, or consultations with relevant stakeholders, depending on the nature of the case. Findings are submitted in writing and incorporated into the case record. 

If the written report is incomplete or contested, the court may summon the expert for very brief oral clarification. While adversarial cross‑examination is not standard practice, parties may be permitted to pose questions under judicial supervision (the judge may rephrase attorneys’ questions) in complex or high‑stakes matters. The judge retains full control over the format and scope of any oral proceedings, ensuring that expert input remains focused and impartial. Attorneys may respond to the expert’s report or request elaboration, but they do not direct the expert’s inquiry. The court manages both the engagement and presentation of technical evidence, reinforcing the expert’s role as a neutral advisor serving the judge’s understanding rather than the parties’ positions. 

Party‑Appointed Experts   

Alongside the court‑appointed experts, each party has the right to nominate technical assistants to review and comment on the official report. These party experts prepare written opinions that critique methodology, highlight overlooked data, or propose alternative interpretations. Their submissions are treated as supplementary and are subject to judicial evaluation. Unlike the perito, they do not operate under a judicial mandate and their evidentiary weight depends on relevance, clarity, and alignment with procedural norms. Judges may consider these counter‑reports—particularly if they identify flaws or introduce significant new information—but the court’s own inquiry remains primary. 

This dual structure reflects the broader design of Brazilian litigation, where technical evidence is anchored in judicial control but open to adversarial challenge. Party‑appointed experts assist in shaping legal strategy and provide a mechanism for contesting official findings, yet their role is reactive and constrained by the court’s oversight. 

Scope Definition and Oversight   

When a Brazilian court appoints a perito, it issues a directive that defines the technical questions to be addressed and outlines the boundaries of the inquiry. The expert is expected to investigate independently, using methods appropriate to the subject matter while remaining focused on the specific issues identified by the judge. The court may revise or expand the scope if new questions arise during proceedings, but the expert’s mandate remains tightly controlled. 

The expert’s report is submitted and becomes part of the official case record. It is shared with both parties, who may respond or request clarification. Party‑appointed assistentes técnicos may submit their own reports, which are added to the record and reviewed by the judge. Direct or informal contact between experts and the parties is discouraged, and communication is managed through the court. This structure preserves procedural neutrality and ensures that expert findings are presented in a controlled and transparent manner. By defining the inquiry and managing its presentation, the court maintains oversight without interfering in the substance of the expert’s analysis. The process is designed to clarify technical issues within a judicial framework, supporting the judge’s fact‑finding responsibilities while allowing space for adversarial critique. 

Procedural Integration

Expert evidence is incorporated into the case record as part of the broader evidentiary framework. The perito’s report is treated as the official technical assessment, and judges rely on it to clarify factual issues that require specialized knowledge. Party‑appointed assistentes técnicos submit their own reports, which are added to the record and reviewed alongside the court expert’s findings. These counter‑opinions may influence the judge’s evaluation, but they do not carry the same weight. 

Judges consider expert reports together with witness testimony, documentary evidence, and legal argument. The emphasis remains on written submissions, and oral clarification is used only when necessary to resolve ambiguities. Appeals courts examine whether expert evidence was properly admitted and whether procedural requirements were followed, but they do not revisit the technical conclusions themselves. This integration reflects the Brazilian model: expert input is anchored in judicial control, supplemented by adversarial critique, and situated within a record that prioritizes written analysis over oral contest. 

Payment and Cost Allocation   

Expert compensation in Brazil is governed by judicial procedure and the Civil Procedure Code. The court determines the fee based on the complexity of the inquiry, the time required, and the nature of the expertise. Judges may order one or both parties to advance the cost, depending on who raised the technical issue or how it emerged during proceedings. These payments are treated as litigation expenses and may be subject to reimbursement depending on the case outcome. 

Key Compensation Rules: 

• Proposal. Once appointed, the expert must present a fee proposal within five days, along with their CV and professional contacts. 

• Party Consultation. The parties are given five days to comment on the expert’s proposed fees. After this, the judge sets the final amount. 

• Payment Schedule. The judge may authorize an advance payment of up to 50% of the fees at the start of the work. The remaining balance is paid only after the expert has delivered the final report and provided any necessary clarifications. 

• Fee Reductions. If the expert’s report is deemed inconclusive or deficient, the judge has the authority to reduce the final compensation. 

• Burden of Payment. Fees are generally paid by the party who requested the expert evidence. If both parties or the judge requested it, the cost is split equally. 

• Gratuitous Justice. For parties granted “free justice” due to financial hardship, expert fees are typically covered by the State, often following specific fee tables established by the court. 

Court‑appointed peritos do not negotiate terms directly with the parties. All financial arrangements are managed through the court, which ensures that compensation remains proportionate, regulated, and insulated from partisan influence. While there is no fixed national fee schedule, rates are informed by the expert’s discipline, credentials, and the demands of the case. Assistentes técnicos are compensated privately by the parties that retain them, but their fees are not set by the court and are treated as part of the party’s litigation costs. 

This structure reinforces the neutrality of the court‑appointed expert while allowing parties to engage their own advisors without affecting the independence of the judicial process. By separating financial responsibility between official and private experts, the system maintains balance between judicial oversight and adversarial participation. 

Structural Contrast

The Brazilian model departs from both adversarial and inquisitorial traditions in ways that shape how evidence is understood. Testimony and expert input are not framed by a sworn obligation to tell the truth. Witnesses, parties, and even experts operate without an oath, and this absence of a formal truth‑telling duty shifts emphasis toward documentary corroboration and judicial oversight, with judges weighing credibility against the broader evidentiary record. 

Expert participation is likewise structured to reinforce judicial control while permitting limited contestation. The official report prepared by the perito anchors the technical record, and party submissions are admitted as commentary rather than competing authority. Oral proceedings are rare, and when they occur, they are tightly managed by the judge. The evidentiary process is therefore dominated by written materials, with only constrained adversarial critique. 

Sidebar: Brazilian System Features 

• A Historical Mashup. The foundation for Brazil’s court system is Portugal’s civil law system, which is itself a combination of Roman law and Ecclesiastical law.  

• Labor Specialization. Brazil is unusual in maintaining a nationwide system of labor courts, which handle employment disputes separately from civil courts. This specialization often requires technical input in areas such as workplace safety and payroll accounting. 

• Collective Actions. The Ministério Público can initiate collective civil actions on behalf of consumers, communities, or the environment. These cases frequently depend on expert evidence to establish harm or quantify damages. 

• Judicial Independence. The 1988 Constitution entrenched judicial independence and gave courts authority to appoint experts without interference from other branches of government, reinforcing neutrality in technical inquiries. 

• Jury Limitation. Brazilian jury trials are restricted to homicide and other crimes against life. All civil, labor, and most criminal cases are decided solely by judges, making judicial fact‑finding the dominant mode across the system. 

• Case Volume. Brazilian courts handle a very high volume of litigation compared to many jurisdictions. The reliance on written expert reports helps manage this caseload by reducing the need for oral hearings. 

Conclusion   

Brazil’s system illustrates how civil law traditions can be adapted to incorporate adversarial elements without abandoning judicial control. The appointment of peritos ensures that every case has a neutral technical foundation, while the participation of assistentes técnicos allows—to at least some extent—for parties to challenge and refine those findings. The emphasis on written reports, the judge’s central role in defining scope, and the layered structure of official and supplementary analysis distinguish Brazil from both European civil law jurisdictions that rely exclusively on court experts and Anglo‑American systems that chiefly depend on competing party witnesses. 

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