By Vitor Antony Ferrari, Ivan Kubala and Nicoly Crepaldi Minchuerri*

When deciding on a given procedural issue, the judge is required to provide a basis for his/her understanding, otherwise the decision rendered will be considered null and void. To support this, he/she uses, among other legal grounds, the precedents established by the Superior Courts on the thesis debated in the specific case, which serve to provide stability and legal certainty.

It happens that certain cases, at first glance, appear as examples in which the precedent paradigm may be established, however, the judge and lawyers must always be aware of the nuances of the specific case that may require differentiated treatment.

It is precisely in these situations that the principle of “distinguishing” emerges. This technique should be used to compare the specific case with the paradigm case, establishing points of divergence between the two, so that the decision used in the judgment of the paradigm case and its similar ones cannot be used to substantiate the decision handed down in the specific case. 

Through this technique, the aim is to demonstrate that, although similar, the paradigmatic case and the case under debate present differences that, although they may be subtle, make it impossible for the judge to use a common argument. 

Although it may seem simple, the use of distinguishing is extremely complex, since its basis goes beyond the mere factual reality of the case, making it mandatory to demonstrate legally why the precedent should not be applied to the specific case.

Therefore, it is essential that “distinguishing” is defended by professionals who are experts in the subject, and it must be used in a balanced way in order to preserve legal certainty, but highlighting the need for divergent decisions. 

(with the collaboration of Luís Felipe Meira M. Simão)