Episode 31: Developing the Brazilian Legal System by Design with José Faleiros

This is Legal Design Podcast, my name is Nina Torvenen and I am Henna Torven. This week, we are joined by Jose Valero's Jr., a Brazilian technology lawyer. Brazilian legal system is facing many challenges and undergoing major changes as we know legal design can assist in this change and bring out the positive. We hear, for example, about how legal design and visual law have been used to improve court practices in Brazil. To need to hear how legal design is developing in Brazil. Welcome to Legal Design Podcast, Jose. How would you like to introduce yourself to our listeners? Hey there, Henna. Hey there, Nina. First of all, thank you so much for having me on the Legal Design Podcast. It's a sensational project. I have to say that I am very honored to do it with you guys. Well, about me, I'm a lawyer in Brazil, I'm specialized in cyber law. I'm also a PhD candidate and all my academic research has been dedicated to themes regarding technology and law. It's been quite a few years of that now and I've had the amazing opportunity to witness how some of the very important debates on themes such as internet regulation, personal data protection, AI impacts and many others have flourished in Brazil. But as an enthusiast, technology and design have been topics of interest for me since my childhood. That's how I put it. Oh wow. Wow. Hey, how did you get interested in legal design specifically? Well, as I've mentioned, I've been witnessing a trend here in Brazil regarding themes that are related to technology and law. Legal design seems to be the latest chapter of that trend. And specifically last year in 2020, during the pandemics, yes, I was thinking about it and developing new projects, especially from my academic perspective. I noticed that there wasn't really a debate on legal design here in Brazil even though some publications had already been seen around the world and even here in Brazil. But mainly papers or very, very isolated discussions, but noticing that and the need to bring light to the debate, I decided to, in September of 2020, partner with my good friend, Tales Kalaz. That's when we conceived this project that in the end became a collective work, a book edited by us. Yeah. Congratulations about the legal design book you published. You mentioned about the lack of debate related to legal design in in in Brazil. What do you mean exactly with the debate? Do you think that there was like no lack of discussion in general but like critical analysis of the concept or something? That's a great question, Nina. Thank you. Thank you for that. No, what I mean is that there was a perception that the team needed more space in legal debate but no one had yet put on the effort to bring light to it. So we had envisioned a book that albeit a collective work would not only be a bunch of papers. No, no, no, we wish to do this the right way. With a thorough approach and with methodological organization. So we decided to divide themes in three categories. So that we'd be able to cover at least the main aspect of legal design from the theoretical applied and case study stand points. And the result, as I said was blasting, it had 25 chapters written by almost 40 authors, all kind of linked together in a very organic way. The book was published on April 10, 2021 very recently. So the results really, really impacted us. The book was sold out in three weeks because we impressed twice. So there definitely was an interest and a need in the market for the book. When we decided to go through with the project, with the book, we didn't really see it come in you, you know, how well received it would be. Of course, all of that would not be possible without the unconditional support of our authors and of our publisher. I have to say this, editor of FOCO, to whom we're very grateful, especially to Roberto Tensa, the editor in chief, loved the idea from the get go. And they were very supportive during all stages of developing the book. So all her team, Leonardo Pereira, lots of Lima, Georgia Diaz, Leonardo Hermano, Marcio and Marcos Domtiere, great team of professionals helped us lapidate that project. That in the end showcased us that we didn't lack legal design as a team for debate. We lacked effort to bring light to the much needed debate. So in terms of impact, whenever we gather feedback from our readers, what we notice is that a real breakthrough in legal design has happened, even though we were not writing about it or talking about it here in Brazil, it was just been perceived that's the point I'm making. Yeah. So what kind of particular topics you cover in the book, what's the content if you describe it to us as not being able to understand particular keys, unfortunately? All right, that's also a great question, because as I mentioned, Talies and I decided to organize the book in a way that it would not be just a bunch of papers gathered in a book. No, our goal was for it to be kind of a manual that any reader, even those who had never heard of legal design could read it and understand what we mean by it. So we cover theoretical aspects, applied aspects and some case studies. The reading aspect is the most interesting one because, as I was mentioning, whenever we gather feedback from our readers, we hear everyone say that it's a very pleasant experience because they understand what it means, they understand the core concepts of legal design, visual law, design thinking, topics that are covered throughout the book, but they also see how it applies to reality itself, by understanding the case studies or the applications that are on the horizon. So you're actually applying the design principles also in the book, how it's made and how it's what it does to the user. Great. Sounds good. Jose, do you think you're going to translate the book into English? That's a great question, Henna, a great one because to be honest with you guys, I didn't realize that legal design would end up connecting us. It's really, as I said, an honor to be here having this conversation with you, but initiatives such as the legal design podcast and like our book and many others that are starting to become available on the market really showcase how important this is and how we need to connect in order to understand the whole phenomenon. So translation is one of our goals, indeed, we need to publish in English. So that, of course, we can let our ideas be known to more readers, but the impact that our first book had here in Brazil has already been a very significant one and that's not to be disregarded. So it is something that we have on the horizon, but I can't really say for when. Jose, you already mentioned that you gather feedback from the readers and what you mentioned is that the book is, well, everybody likes it and it's well, well, how about the industry in general in Brazil? How are the lawyers reacting to legal design and have you got any maybe constructive feedback from the lawyers community in Brazil? I've seen a few critics, there are not many, but they're usually very vocal trying to diminish it by saying that it's obnoxious or that it tears down the complexity of law. Well, I can't disagree more. The legal industry has benefited. that from this new perspective, many of our co-authors are magistrates, members of the public ministry, established lawyers, academics, designers, and in some of the texts they show us on our book that even from an empirical point of view, legal design is beneficial. Visual law, for instance, has specifically been very recently an important trend in courts here in Brazil. We're seeing judges trying to present decisions with a more visually understandable layout that aims not only at lawyers, but at the parties. The same has been a growing trend for lawyers, more concise, well-designed petitions, do not mean that they lack arguments. It just means that they are more intuitive. Therefore, in a judiciary system that has been overwhelmed for decades now, which is precisely the Brazilian case, time-consuming processes aren't to be avoided, improving skills that allow better legal interactions, usually result in better and faster results. That's the kind of feedback I've been receiving from a legal practitioner's all around. And it's really become a trend here in Brazil. Very exciting, really. - Yeah, it's great that legal design is gaining more and more audience and it's becoming mainstream. - Yeah, it was interesting, the example you mentioned about courts using visualizations when they're explaining their decisions. Can you come up with some precise example where or in what kind of situations that have been used in Brazil? 'Cause so far we have not noticed anything like that, for example, in Finland. - Sure, sure. Nina, that's one of the main aspects that we've considered when understanding this development over the past two years of legal design in Brazil. In our book, authors such as my good friend and great, great, great researcher Bernardo Jazevedo Sosa or even magistrates such as a good friend Marco Bruno shows us how the judiciary is really applying these techniques and some magistrates are trying to not only decide the process with legal arguments, with huge phases being faced throughout the decision but also with a shortened version of it being available, being made available actually to the parties. With legal design implemented not only by visual elements apply to it but with some kind of simplification and more concise reading aspects of the decision itself that allow for a better comprehension that has positive benefits for everyone involved. It allows the citizen to understand what law is and what the case itself is all about and how it has been decided. So co-authors such as Professor Nelson holds in thought who is really, really a great academic, he's very famous here in Brazil. Showcase does how it has to be done. Another member of the public ministry who is a co-author of ours, my good friend Pedro Borges Murão showed us exactly that and how projects might be implemented using technology to address issues that not only involve a lack of comprehension of the parties involved but a more efficient approach to how they deal with problems that are societal problems brought to them with very in demand of society. That has deeper impacts than visual law itself. So legal design has this increasingly interesting and curious dimension that we're still trying to understand and take a full grasp of how it impacts society but it does and how it does is yet to be seen in its full potential. But many examples already exist. They involve the judiciary, the public ministry as I've mentioned also established attorneys trying to improve how they deal with law and practice law using legal design as a whole but also as to how we as citizens needed to have a better legal system. Not to change it from within but to deal with its consequences. Beforehand and understanding how disruptive innovation is also positive. That's the core theme here. That's what we need to tackle for the coming years to understand how legal design really impacts society. We probably face many of the obstacles that not only are in labor countries here in Latin America but all over the world do face but there are much more aggravated due to the continental aspect and the discrepancy is that permeate the whole legal system in Brazil to put it simply, as I mentioned before, a lagging judiciary system overwhelmed with processes is to be avoided. That change in a legal culture lately has been very exciting but we are still a long ways to go. You see, in 2020 the Brazilian judiciary had over 75 million processes still lacking a solution. It's a lot. Even though Brazil is a huge country, it's still a lot. And of those about 17% were either suspended or temporarily archived for many different reasons but however impactful that might sound in numbers there is a positive tendency. You see, the latest annual report of the National Council of Justice shows us that the year 2017 was marked as the first year of the historical series in which the growth of and the accumulation of processes seemed to stall. It had been growing since 2009 and remained relatively constant up until 2017. In 2018 for the first time in the last decade there was in fact a reduction in volume of pending cases with a drop of nearly one million lawsuits. In 19 the reduction was even greater with approximately one and a half million fewer cases pending in the judiciary. So in 2020 when this latest annual report was published the greatest reduction in the number of pending cases was again observed in the historical series. So that's not a coincidence. Many practitioners have been really engaged in improving those numbers. Alternative dispute resolution methods have been sought as a means for that but there's also more to it. Legal design has really been regarded as another component for this transition. So the numbers shows us a positive trend and I think that bringing light to different tools that help improve that is the way to go. Legal design is on the horizon as such a thing. - So we have had a pleasure to have many guests from Latin America for the second season of our podcast. And as you have just described for us as well it seems that the legal design movement is getting big especially in Latin America and that there are many great examples from different areas of law and the legal systems where legal design has already been applied in practice. And both in the private sector and in the public sector as you just told us. But when we have asked the reason for this from our friends in Latin America they have said that the one thing is to urgent and inevitable need for fixing the legal systems and the problems they're facing. And but do you see any other reasons like in the beginning you mentioned that you have a background for example in technology and legal back. Do you see that there's something happening in this space tonight also explain the growing interest to use design approaches and methods in improving the legal experience. I do believe that Latin America is a good place to look at in terms of how it's developing here because we face a lot of challenges, different challenges from many different perspectives and the way it's been rapidly developing here just highlights how important this movement is. I'd say that technology now is also a factor. Many efforts have been recently made from regulators and points to create legal frameworks for technology and its interactions with law. The next frontier, in my point of view, involves artificial intelligence. The current debates have been a bit unsettling as our Congress seems to be aiming to legislate hastily on something that Europe, on the other hand, has been debating for many years now. I think that AI, just to cite an example, we will bid this next frontier because it involves such a disruption that is not to be disregarded. We have yet to see, however, how it's going to develop from a legal standpoint. But I'll not be very excited by the current Brazilian initiative if the bill passes on our Congress, but perhaps seeing how Latin America deals with this legal design movement and I listened to the latest episode of legal design podcast with Angelica Fleshes. And I was delighted to know that, for instance, Colombia has seen the same trend that we're seeing here in Brazil. I can't really predict what's going to happen, especially if other countries are going to adhere to that. I'm going to join this ever growing movement, but hopefully all of them will. And Brazil is, from my perspective, taking the right path, the right approach to it. There's still a long way to go, as I've mentioned, and we still have to see how it's going to develop in the coming years. But I'm an optimist. I need to say that. I'm an optimist. Well, that's a good thing. I think it's always good to be optimistic, and think of the bright things about the future. Hey, I hope this doesn't sound just mental or come out the wrong way, and I want to underline this to everybody that this is all only from a Nordic perspective that it seems that democracy and societies are still in a way developing in Latin. Although we are seeing a lot of stable countries in the region as well. And I think law is the foundation for building and designing societies. But as we all know, law changes very slowly. But then there's the legal design that offers a new way to operate and do law. So Jose, from your perspective, do you think that legal design could also be the method to help maintain the stability of societies and democracy in Latin America? Well, that's a sensational question, Hannah. Thank you for that. A hard one, I admire that. Yeah, I'm really sorry about this. You're seeing a lot of potential in legal design. Yes, a lot of potential about this. But really, really, don't worry. It doesn't sound judgmental at all, and it didn't come the wrong way because your perspective isn't wrong. I can't see that all Latin American countries are in the exact same spot right now, but Brazil might be an example of a nation that's been trying. And oftentimes struggling to overcome many of its historical problems, especially since redemocratization happened in 1988. There's a long road ahead, as I've mentioned, and we can't deny that there are very complex problems to be solved and diversion perspectives on the horizon. But in law, from my standpoint, it seems undeniable that a solid judiciary system is crucial for democracy. And to be solid, it needs to be efficient as much as it needs to be trustworthy. It's undeniable also that the fear of a sort of constitutional erosion is not to be disregarded, but hey, as I said, I'm an optimist. The numbers I brought shows us that there is a good tendency. So legal design helps a lot. It improves efficiency, and as a consequence, stress technology itself has the same characteristics. So in the long run, it might become an important factor in terms of maintaining legal stability. So yeah, I do believe that it will have good impacts in maintaining such stability in society, but on the long run. Yeah, exactly nothing. Most that fast. When discussing the possibilities and the positive impact legal design can have, what are the things in the legal system that you recognize that would maybe first need redesigning or that would create the biggest impact. You have ideas on that. Nice Nina. Thank you for that. Well, there's a lot to be legally redesigned. Not only by legal design itself, but by different efforts that involve society. It's been crucial. As I mentioned for our judiciary to face the challenges of information society, as much as it needs to use technology in its favor, the same goes for lawyers and academics. So to put it simply, the first thing to be redesigned is not the legal system itself. It's the mindset that is predominant for those that work in the legal system. That's my short answer for that. Yeah, and that's that's your right on the spot to note change can happen if the mindsets and attitudes and the thinking changes first because that's what influences to behaviors. So do you have like ideas how to change the mindsets. I do, I do and should be very honest with you guys, I think that what we're doing right now is an idea of how to do that. I didn't say it before, but I came across the legal design podcast while doing some research on design thinking. That's very curious because. Interesting, also to ask you, people find to our little venture. It was mind blowing for me when I found out the podcast because I came across, I believe it was the second episode of Professor Michael Doherty in which you discussed many things, but also design thinking. The first thing that came across my mind when I listened to it was that, hey, this is it. This is what we need to do, right? We need to connect with everyone else that's worried about the impacts of legal design. And both of you guys have been doing exactly that, so curious to you. But as I've mentioned, this change of mindset, which is seen as the main reason, the core reason for an absolute disruption, also involves reading publications, it involves debates, it involves everything we're trying to do right now. In terms of bringing light to the problems, but also to possible solutions to those problems that legal design might allow us to tackle. Change takes time, and when we think of legal design, it's, I mean, we're not ready. This is not ready. It needs to change, and it needs to develop, and we need to take it further, just to see what it's like at the end and how can we contribute? To worlds legal design systems. But hey, who say, let's go back to technology just for a bit. And I understood that you have done quite a lot of work when it comes to law and technology. And now that we're talking about designing legal systems and redesigning legal systems, is there a role for legal tech or technology in the designing work? And what will that role be? Even though my career is not such a long one, as I've mentioned in the beginning, I've dedicated all my efforts, and all my academic research to themes related to technology and law. So this past decade has been a complete disruption in terms of how technology interacts with the law here in Brazil. Not only here in Brazil, actually, but all over the world, yeah. But including in Brazil, and from my perspective, what I can say is that even though there is this lagging tendency to regulate everything by the law with legislative efforts that are not instant with the disruption of innovation, I do feel that we're more open to debating how technology interferes with society and the law and this openness allows us to really tackle some of the problems beforehand. understanding that legal disruption is to be expected. And that many of the efforts that were putting into making new laws could be better invested, I might say, in understanding the whole problems or understanding how technology has negative effects or impact in society to tackle those problems beforehand. We need not really disregard technology as a whole. We need to understand how it works and how we need to change as a society before we change our legal system. As we need to change as citizens, for instance, when we deal with an electoral process that is happening with technology as an important communicational factor for it before we criticize it and disregard it. It's impossible to go back. It's impossible to simply discard technology in 2021 or in today's society. Hey Jose, thank you so much for visiting us. It was so great to meet you and get to know your work. And we love to predict future in this podcast a little bit. And at the moment we are seeing the strong rise of legal design in Colombia and Brazil. What do you think? What will be the next Latin American country that will join the legal design movement? Well, Hanna, I'd love, I'd really love to be able to predict the future. Yeah, we do. Perhaps if I if I was an algorithm and I had all these complex machine learning or deep learning techniques working for me, I'd have a more assertive answer for that. But well, I can't really predict which other country in Latin America will be the next to join this ever growing movement. But hopefully all of them will at some point. As I've mentioned, I listened to the latest episode of the Gusein podcast with Angelica Fleshas and I was delighted to know that Colombia has seen such a trend recently. I do believe Latin American needs to be more united. And I'd really love to see that happen. So I'm not trying to predict what's going to happen, but again, initiatives such as yours with the legal design podcasts and our book. I could also say that our key factors for that. Maybe we need to connect with our Latin American friends and to develop projects together. We have a lot to share and a lot to learn. Exactly. So Latin American listeners, please reveal yourselves and your project if you're doing something regarding the legal design. That's right. It's been really an honor. Thank you so much. You've been so kind to me. So open to the idea of discussing how it's been developing in Brazil. And well, I hope that many more friends of ours will be inspired by our conversation and will be more vocal about it and we'll start researching it. So that's all thanks to you guys and all the effort you've been putting on the legal design podcast. So I need to say it one more time. Congratulations. Thank you. Thank you for listening to the legal design podcast. Get to know us at legaldesignpodcast.com.