Uncommon Sense
1,000 lawyers at the bottom of the sea? A good start!
Lenio Luiz Streck
Marcelo Augusto Rodrigues de Lemos
December 4, 2025, 8:00 AM
Source: CONJUR
Abstract: Why do lawyers cause so much trouble?
Why does the blame always fall on lawyers when push comes to shove?
The reasons why virtual court trials violate constitutional principles!
To begin, we invoke "epistemological charity," primarily based on Donald Davidson (and Blackburn). Epistemological charity governs the interpretation of others and imposes on the interpreter a maximization of the truth or rationality of what the subject says . Davidson defends the possibility of speaking of objectivity, since if communication between people occurs, it is because a considerable part of what we share is common . Therefore, we require the "deferral" of the "principle of epistemic charity." We strive to explain; we expect efforts to ensure we are well understood.
May the judiciary also make an effort.
Indeed.
The rise of virtual trial sessions, especially in higher courts, represents a setback in the exercise of the right to defense. This seems undeniable. Objectively, it is a fact. It is not mere opinion. Because it is empirically verifiable.
This is how we get to the heart of the matter. Yes. With this forcefulness because, certainly, those who work on the other side of the bench know how virtual sessions, in the name of a fictitious efficiency (for whom?), end up delivering a more deficient judicial service, because the judiciary is only concerned with quantitative efficiency and not qualitative efficiency. And, even worse: isolating the legal profession, removing the right of lawyers to make oral arguments and even to clarify facts.
That is why, from the outset, the criticism addressed here is not solely directed at recorded oral arguments within the context of virtual sessions—which, certainly, no matter how much one might say there is an ode to due process, in practice , weakens (or, as they say in the Pampa region, undermines) the legal profession. It takes the legal profession off the radar. Certainly, recorded oral arguments, or even their complete suppression (as occurs in cases of appeals to higher courts, despite the rule of Article 7, paragraph 2-B, of Law No. 8.906/1994, especially in Habeas Corpus ), are consequences of the virtualization , as a rule, of judgment sessions. We seriously doubt that any minister or judge watches any recorded oral argument. We doubt that the legal staff watches. So, why do we do this?
In the higher courts, virtual trials have become the rule. Fact! In the Superior Court of Justice (STJ), there is not even the possibility of expressing opposition to the trial, except for that coming from a member of the judging body (article 184-D, sole paragraph, item I, of the Internal Regulations, with the caveat that this was possible before the repeal of item II by Regulatory Amendment No. 41), whereas in the Supreme Federal Court (STF) this possibility exists (article 4, item II, of Resolution No. 642/2019), but it is conditional on the approval of the reporting minister who, more often than not, denies it. Fact!
In the São Paulo Court of Justice (TJ-SP), asynchronous virtual trials have become common. The recent Resolution No. 984/2025 regulates the rules of the virtual procedure, allowing the parties the possibility of expressing opposition (article 11, item II), provided that such a request is made up to 48 hours before the trial and is granted by the rapporteur. Imagine an appeal in criminal matters—the moment when the merits are rediscussed—having its proceedings carried out in a virtual environment, with only one possibility of recorded oral argument (which, let's be frank, does not materialize a full exercise of the right to defense ).
The question here is this: we are not against technology. We are not even entirely against virtual trials. The fact is that it is not up to the Judiciary to impose its implementation. This should be a decision for the litigant who, through their lawyer, expresses agreement or disagreement with the virtual trial. And it also depends (or would depend) on the Legislative Branch—today more concerned with parliamentary amendments. That is the point. And this applies to any trial, even in cases where oral arguments are not permitted. In motions for clarification, for example, it is possible to provide factual clarification. However, in the virtual environment—although this possibility of recording in writing exists—it is much more difficult. Let's say, impossible.
Therefore, several problems arise from this gradual distancing of lawyers from the administration of justice:
The first problem is the publicity of procedural acts. There is no possibility of control and intervention—in person, live, at the same moment, as it should be—regarding any factual errors or even distortions regarding the content of the defense's request.
The second is the suppression of the duty of accountability . This involves the full observance of one of the main principles of criminal procedure: the duty to provide reasons for judicial decisions. Does following the vote in a virtual session constitute providing reasons?
The third is the reduction of the right to defense, relegated to a secondary role. It is a reductionism of the role of the defense. Furthermore, on this point, there is a violation of Article 133 of the Constitution by emptying the function of the lawyer in appellate courts and higher courts.
The fourth problem, in turn, relates to a violation of the principle of collegiality (so often touted and so rarely respected). What is the probability of a disagreement arising in the midst of a semi-automated trial conducted virtually ? Now rephrase that question when there is in-person oral argument. It's simple. Virtual trials, in fact, stifle (the word is used deliberately) the collegial decision—the plurality of ideas—which is precisely the objective of trials in chambers and panels.
The fifth point is that the reasonable duration of the process—which also has the litigant as one of its recipients—cannot, in the name of the efficiency of the judicial process (which, by automating and virtualizing everything, becomes a false efficiency), suppress fundamental rights and guarantees, especially the right to attend the trial in person . Now, let's imagine all this amidst the advancement of Artificial Intelligence. The first-instance decision comes from a prompt ; the appeal is judged through a prompt (which will not contradict the first instance, unless the two AIs contradict each other). And so on.
The sixth and final problem we see is a violation of the principle of orality in trials. This principle, incidentally, ensures the speed of procedural acts and aligns with the reasonable duration of the process.
From all this, the conclusion is that the lawyer is becoming increasingly unnecessary (or less important) in the process, becoming merely a formality. And see how this weakening of the lawyer's role—and performance—fundamentally in the higher courts, occurs through a succession of silent events (Bernd Rüthers has a book called "The Silent Revolution" ) that, nevertheless, are institutionally absorbed by the legal profession and, pragmatically, cause the lawyer—isolated and cornered by the Judiciary— to naturalize (and this is very serious) the suppression of their prerogatives, including those produced by Congress. Therefore, with so many violations of fundamental precepts, there are already concrete elements for filing an ADPF (Action for Declaration of Unconstitutionality by Omission)—the OAB (Brazilian Bar Association) can consider this.
In any case, this text is an invitation to dialogue. In the spirit of the "principle of epistemic charity" proclaimed above.
We ask for an effort to understand the phenomenon and to suspend any preconceived notions, so that neither lawyers nor parties suffer any prejudice in the debate.
There are many jokes about lawyers. Perhaps the harshest of all is in Shakespeare's play Henry VI, where Dick the Butcher (Jack Cade's partner) says "kill all the lawyers" when they invade the castle. Lawyers always "get in the way." Therefore, the title of this article reproduces a common joke, present in any US stand-up comedy routine : what does 1,000 lawyers at the bottom of the sea mean? Answer: it's a good start; or "it's a good idea."
Shall we talk about it?
Lenio Luiz Streck
He is a professor, legal consultant, lawyer, and founding partner of Streck & Trindade Advogados Associados: www.streckadvogados.com.br
Marcelo Augusto Rodrigues de Lemos
He holds a doctorate in Law (Unisinos-RS), a master's degree in Criminal Sciences (PUC-RS), is a member of Dasein – Center for Hermeneutical Studies, and a criminal defense lawyer.
Derocy Giacomo Cirillo da Silva said:
05/12/2025 at 10:50:20
Oral arguments in courts are already a pipe dream. This is because, strictly speaking, for a judgment to be considered valid, the rapporteur should orally address the argument before delivering their vote, thus eliminating the need to provide the other judges with their votes beforehand, at least in non-virtual trials.
E-commerce said:
05/12/2025 at 08:11:47
The lawyer used to cause much more trouble. Then they became political commentators. Lenio is one of them, with those so-called prerogatives. All for a so-called opportunistic democracy. Now they'll pay for all those who ignore due process. I'll give you an example. A quote on Twitter. May there be more, may the judiciary grow and swallow you all. I'll find it insufficient and good.
Eduardo de Castilhos Fritz said:
04/12/2025 at 12:06:23
Currently, there are many statutes: for children, the elderly, people with disabilities, even football fans. It's time to create a Statute for the Jurisdictional Party, including the right to procedural speed, the right to be present at all stages of the process, the right to demand that magistrates perform all acts of the process in person (it's a disgrace that a Supreme Court Justice would send his assistant judge to conduct the custody hearing or interrogation of the defendant and witnesses). There should also be deadlines for initiating trials, deadlines for concluding them, and holding the courts accountable for the occurrence of criminal statutes of limitations due to their fault.
Fábio de Oliveira Ribeiro said:
04/12/2025 at 10:36:43
Why shouldn't lawyers be irrelevant? Even judges can now be cybernetically guillotined with a few clicks from an IT engineer.
The exceptional cyber-court created by the US imposes banking and financial sanctions even against judges who prefer legitimate decisions (Alexandre de Moraes, of the Brazilian Supreme Court; Nicolas Guillou, of the International Criminal Court) considered detrimental to Uncle Sam's geopolitical interests.
Neither Immanuel Kant, nor Hans Kelsen, nor any other jurist ever imagined that a technology would be capable of destroying Justice and its distribution with such efficiency. The technological hegemony and cyber asymmetry of the US have nullified everything that has been slowly built by human civilization. The autonomy of Law no longer exists. National and international courts are coerced and threatened without causing widespread indignation. The personal immunity of judges to political pressure can now be revoked with a few clicks. Remote punishments are imposed without due process through routines created by IT engineers.
No ruler should have such exceptional and illegal power over the private lives of other people anywhere on the planet. However, the world press continues to pretend that the Chinese communists, and not the American techno-imperialists, represent the greatest threat to humanity and to international public and private institutions.
In this context, lawyers can't even protest. And if they do, the result will be less than a TikTok meme.
Antonio Luiz Pimenta Laraia said:
04/12/2025 at 10:09:03
And what about the Bar Association? The honorable Order that should safeguard the observance of prerogatives? Where is it? Wouldn't one expect it to institutionalize a "general strike"—if there is no right, there will be no justice! Isn't there a lack of outrage against the AI printout of the 1st Instance sanctioned by the Control V of the 2nd Instance? And when I say outrage, I think of the episode that immortalized the people and authorities of Viterbo, Italy, in the 13th century. Faced with the cardinals' inertia in electing a pope, they were locked in the palace where they were gathered. The scarce food, the precarious hygiene, and the discomfort caused by the elements (they tore the roof off the palace) quickly caused white smoke. Returning to today's Brazil, where the Supreme Court has just removed the power to impeach ministers from the Senate, passing it to the Attorney General's Office, I ask: where are we, the lawyers? Where are our class leaders? Where is the Guardian of Law and Democracy?
Leandro Pinto said:
04/12/2025 at 08:09:34
And what about Minister Alexandre de Moraes? Is he talking to a lamppost?
I think the people should rise up against these exorbitant salaries in the courts, as denounced by the newspaper O Globo, and put an end to this plundering of public funds!
Because they do this because they hold the keys to the budget, which is divided every year!
https://www.conjur.com.br/2025-dez-04/1-000-advogados-no-fundo-do-mar-um-bom-comeco/
We live in a country with a minimum wage (R$1,518.00), yet we support a fat elite that sucks our tax money dry! How disgusting! How outrageous!
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