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We have often seen great debates around justice, but we have not yet seen anyone defend that the problems and the failure of justice as it presents itself today, that is, in our words, Reactive Vertical Justice, can have profound, connected reasons to the conception of the current model.

It is one of those profound reasons, in our view, that we now briefly explain.

Vertical Reactive Justice can never really work, because of the perfectly incoherent positioning – we will say even because of the impossibility of coherent positioning – of the so-called forensic actors. Actors who, being “collateral” to the matter, to the truth, end up distorting it decisively.

The explanation of this conceptual mistake is very simple. Let’s take as an example the Judges and Lawyers: the Lawyer is endogenous to reality, because he contacts directly with it, at least as it is exposed to him by clients, but he has an exogenous position to the judicial process that this reality can generate.

The judge is endogenous to the process, but clearly exogenous to reality, receiving it with dense filters.

Now, obviously, the dynamic movement of both is to counter the above inevitability.

But in order to counteract a dynamic movement, say, natural, it is necessary a dose of extraordinary energy, energy that is not always, we would say almost never, available from any of these “actors”, and when it is, the observed results are clearly superior.

Now, we have the entire Vertical Reactive Justice system dependent on “inevitabilities” like this. And if this system emerged, historically, because it was necessary, or because it revealed itself to be a cultural requirement, nowadays it has to be relegated to the field of exception.

Because, stuck as it is in the foundations of any society, it will always contribute to its malfunction, and not the other way around, no matter how much it mends here and there.

As already mentioned above, the Preventive Law movement is usually backwards, if we consider it in its absolute usefulness.

This takes us to a starting point, clean, almost empty, where we have to consider only the person, in his nakedness. At this point, law is just one more branch of knowledge, among many others.

As mentioned above, in the example of the Youth Peer Courts, the conflict, or the absence of it, or, even better, the way of dealing with it, is essentially a question of citizenship, a question of education, a cultural question.

That is why the first point in the Preventive Law timeline can only be the formation of the person, summoning all the professions that deal with him (priests, doctors, teachers). Also called here are all branches of knowledge, from Philosophy to Medicine, from the Right to Theology, etc., etc.

The Lawyer, at this stage, has a marginal utility, although he has it, and in a fundamental point: the Lawyer is the professional who knows the manifestations of conflicts, and therefore knows, better than any other professional, the ways to avoid them, not least because the other professionals who deal with conflict, most of the time, cannot be consulted (magistrates, for example). You know or should know, because, as we will see in point 15, Preventive Law cannot be worked in a frivolous way, as it requires its own skills and knowledge, and not all lawyers have them.

This is the phase of “I haven’t acted yet, and I would like to know what to do in order not to have problems”, that is, the person has not yet taken any steps (here it is important to distinguish between preventive and negligent action, here we are only dealing with that , as this could only take place at one of the 3 in the timeline, onwards).

It calls for a lot of psychology, a discipline that must be part of any future Preventive Law course.

Most of the time, the lawyer (and at this stage, only the lawyer is summoned, that is, it is his job, par excellence) does a double exercise: transporting oneself to the heads of the characters who can cross paths with their client, in the near or distant future, and perspective the whole Law in a broad way, without prejudice to “going down” to some more specific branches (for example, if you are planning the insurance that the customer should take; if it is a future home purchase; a job perspective, etc.).

The lawyer should not be confused with the distant position of the problem, or with the great breadth of knowledge he summons: at this stage, there are considerations that should go into detail, for example, what a person eats or wears, the habits he has at night, and always, their way of being, their moods, etc., etc. Both from our client, as well as from the characters who will come across him on the way.

This is Prevention in the proper sense, or pure,

“I did this, but I liked to prepare myself to avoid that”. Now, whoever tells the lawyer (again, the practically exclusive professional of this moment in the timeline) that he has already done something, clearly forces him to a process of retreat, a retreat to the moment when that person practiced a certain act. This movement is not typical in Prevention, which is why we call this moment “prevention in a less proper sense”.

As we move forward in the timeline, we will see that the weighting range is restricted.

Now, at this stage there is still no conflict, but, as there was really an act without prevention (which does not mean that it was a person’s mistake, because there are insignificant acts, which do not limit the way in which he or his lawyer), the lawyer should already consider it.

It is also at this stage that control over illicit prosecutors (and their demotivation), or over the limits of action of certain activities that flourish in the vicinity of the law, is most useful.

Moment 4, the Potential Conflict, is the first moment in which our client’s interaction with other people can appear, so the field of action is already very specific.

This is the time for all the problems, small and large, that, not having been triggered, are bubbling up.

It is not in this work, written in a schematic way and cultivating a theoretical, systematic approach to a theme that normally does not have it, that we are going to challenge examples, but a very common one emerges: Condominiums, neighborhoods, water, consumption, etc., etc.

At this point, acting in the right direction of one of the parties can deflate the potential conflict.

Usually, and due to a lack of civic culture (of companies or people), the parties both tend to make mistakes, and to generate conflicts.

And conflict arises. At the present time, this is the field of action of Preventive Law, not par excellence, but due to disability. In other words, people have their mental scheme totally oriented towards Reactive Vertical Justice. Most of them, therefore, only “react” when the conflict has already broken out.

This is therefore a fertile ground for the “evangelization” of prevention in law, either by clarifying people about what they could have done or not, or by referring them to alternative means of resolving conflicts, where it is clear that mediation and arbitration.

One of the alternative means of resolving conflicts should be the lawyers’ own office. In fact, even in this almost terminal phase of the timeline, lawyers can be the only professionals and avoid exposing the conflict, encouraging the parties to resolve the matter with each other, with the help of their representatives – the mediator and the arbitrator. they are already external risk factors.

The Transactional moment is the last moment in the preventive law timeline, but that does not mean that it only appears, or should appear, at the mouth of the trial hearing.

Of course, to this end, lawyers themselves cannot integrate transactions into the mouth of the trial hearing in their strategies, something that seems to us a ridiculous habit – because, being sure that a bad deal is better than a good demand, it does not make any sense to leave this bad agreement for a time when people have already spent fortunes, State resources, and, above all, have already suffered everything they had to suffer.

In our experience in this field – in fact, the last 10 years have been of permanent work, in the sense of maximizing preventive justice, and minimizing reactive justice, it happened to us, dozens of times, to grant the same agreement that we had proposed years before, at the beginning of the process. And when we gave it, we couldn’t help but feel frustrated with the inability that the other party had to envision obvious outcomes. Six-seven years to close a deal that has been on the table since the beginning, is not admissible. But it happens, and it happens to poor and resourceless people. The culprits are, in our view, and above all, lawyers. That is, it is us.

We have already heard lawyers say that, even though they both had a negotiating margin for an “early-morning” transaction (right after the initial petition, for example), they would not approach their colleague for this, because that would be a sign of weakness.

As we said above, there is no greater sign of weakness than being limited to the point of thinking this, and practicing it.

Reducing disputes means having more control over cases, because the more cases in court, the more external factors can interfere with the best solution for our client.

To reduce pending issues is also to have an almost absolute dominance of the agenda, which is not the case for lawyers who do not know any other than the Vertical Reactive Justice.

To privilege Preventive Law is also to respond more effectively to clients, to charge for speed rather than delay, and to decisively change the image of Lawyers in public opinion.

In addition, such a change presents itself as a (good) vicious cycle: if lawyers develop skills in what is their area of expertise par excellence, which is the same, that of Preventive Law, they will stop being visited only by people with problems, with deadlines, and will be visited by people who want to beware – more clients, each one spending less money (exponentially less money !!!) with the lawyer himself, and Preventive Law does not normally generate other expenses, which does not happen at all in Reactive Justice.

Thus, lawyers, and their clients, will clearly contribute to the country’s increased productivity, one of its biggest problems and weaknesses. Reactive Justice is the paradigm of low productivity, by nature, as mentioned above.

As mentioned above, the lawyer is exogenous to the process, so his “métier” is his office, not the court, just as his privileged field of action is not the application of law, but working with the real, with the facts.

And this ends this first approach, both preliminary and schematic, of Preventive Law. We believe that we will be, with great pride, the absolute first in the Bibliography on the subject, available in Portugal, because, as much as one looks for it, there are no books on the issue in the Portuguese Library or Bookstore shelves.

And as it is just a schematic, this text should become known as a zero point five bibliographic reference, with the hope that the whole numbers, fat, abundant, will appear there, already next.

Presentation

Colleagues,

Let it be clear: “O Direito na Rua”, like “O Direito na Escola” and “O Direito na Teatro”, is not to see, it is to do.

And today, not next month. It is up to each of us, not a group, not a website, not a company.

Law at School:

Whoever read me in the past years, should know that the Law at School initiative has its remote origin in a personal habit: a few days before or after the Day of Saint Ivo, 19 May (but also at any other time, the request of the teachers) , I go to a school to be with the children and talk about law.

The method is usually simple: the teacher we know asks students in her classes to work out a question each, and then the conversation is like cherries. You spend hours there, listening and clarifying those doubts.

And all of them are so disconcerting, that, often, the theoretically “worst” classes are the most stimulating, generating very interesting discussions, the ones we hardly have in the day-to-day forum (never so authentic, at least).

This is usually my professional moment of the year, and each one that passes is more gratifying, now that I am going back in the ages of the children I speak to.

For some time now I thought to provoke colleagues so that each one (who wants and can) contact someone at the school of their residence or professional home (parish, parish, municipality), and do this: schools have pedagogical autonomy, the initiative it is good (in the sense that it has pure bonomony, without any kind of obscure interest), it does not involve any kind of protagonism or “show-off”. And it belongs to each jurist.

Os juristas que resolvam promover a sua própria visita elaboram depois um texto sobre a sua experiência, e enviam-no para um dos meus mails privados (pode ser o pedro@portolegal.com ), para que se possa agregar e publicar a experiência. A divulgação da mesma fará com que outras escolas tomem iniciativa idêntica.

If I contact 30 colleagues (lawyers, judges, lawyers….), And each of them talks to another 2, we are already 91, just to start…

I take the opportunity to ask the good offices of colleagues who do not want to do it for you, trying to involve other colleagues who consider having a profile for this (lawyers, solicitors, magistrates, notaries, conservatives …), so that each one promotes his initiative, to the extent possible.

The future consequences of creating a healthy habit like this can be very interesting, but at least maybe we will stop leading it with so much civic ignorance.

Gradually, the thing is to extend to other ages, so be written the play that we have prepared for various ages, from children to the end of high school.

It was not said, but it is obvious that the local OA Delegations can, and I think they should, join this initiative, so that colleagues can spread the idea to them.

The “Law at School” costs zero cents, considering that the pleasure that each colleague who joins will take will certainly cause a surplus in your soul.

So, colleagues, let’s go to this?

Law in Theater:

A model play is being written that will serve as the basis for representations at the various levels of education, which can be freely adapted by the responsible “directors”,

in schools or communities.

There are only two requirements: mention of the origin of the initiative, and its subsequent public report, for publication here and elsewhere.

Conclusion:

The essential thing is not to waste time – as is usual with lawyers – to chew the idea, to measure the pros and cons, etc., etc.

There are no cons, believe me.

Only those who have a passion for law will advance, and passion does things by itself.

Then let the passion work, and bring us news in the coming weeks.