Sucumbência: The Cost of Losing a Lawsuit That Few People Calculate

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

The end of a lawsuit is not just about the ruling on the right in dispute. The losing party usually also pays the opposing lawyer’s fees and the court costs, an expense that can exceed the amount in dispute. Understanding the losing-party-pays rule (sucumbência) before you file or contest a lawsuit is what separates planned litigation from a risky gamble.

The Bill That Arrives at the End of the Case

Under Brazilian procedure, whoever causes a lawsuit and loses is responsible for the expenses it generated. This is the principle of sucumbência (the losing-party-pays rule), set out in Brazil’s Code of Civil Procedure. The losing party must pay not only what it lost on the merits, but also what the judicial system spent on the case and the fees of the lawyer who acted for the other side.

Sucumbência has three main components. The first is court costs, the fees paid to the court. The second is case expenses, such as expert fees and the fieldwork of court officers. The third, almost always the heaviest, is the attorney’s fees awarded to the winning side’s lawyer, which are owed to the lawyer and not to the party.

The basis for this allocation of costs is the principle of causation. The party who caused the lawsuit to be filed bears the expenses, which is not necessarily the one who appears as plaintiff. In some situations, the defendant, even though it did not file the suit, is held responsible for the dispute because it improperly resisted the other side’s clear right.

It helps to distinguish two items that are often confused. Contractual fees are agreed between a client and his or her own lawyer at the start of the engagement. Sucumbência fees, by contrast, arise from losing in court and belong by law to the winning lawyer. A company may therefore pay its own lawyer and still be ordered to pay the other party’s counsel.

This cost structure exists in practically every area of law, from consumer to tax, from labor to civil. The calculation base and the percentage vary, but the logic remains the same: whoever takes a dispute to court and does not prevail bears the economic cost of that choice, for the benefit of the person who was forced to litigate.

How the Judge Sets Sucumbência Fees

Setting sucumbência fees is not arbitrary. The Code of Civil Procedure provides that, as a rule, they range from ten to twenty percent of the amount of the judgment, of the economic benefit obtained or, when that benefit cannot be measured, of the updated value assigned to the case.

Within that range, the judge weighs objective criteria: the lawyer’s degree of diligence, the place where the service was performed, the nature and importance of the case, the work actually done, and the time required. A complex case that drags on for years and requires dozens of filings tends to attract a higher percentage than a simple case resolved in a few months.

The calculation base is decisive. In collection actions, the economic benefit usually matches the amount claimed. In cases with no immediate monetary content, such as certain declaratory actions, the percentage applies to the value assigned to the case. That is why understating or inflating the value of the case in the initial petition has a direct effect on the size of the eventual sucumbência award.

When the losing party is the Fazenda Pública (the government as a litigant), the law sets sliding, decreasing brackets: the larger the judgment, the lower the percentage applied to the portion that exceeds each bracket. This mechanism prevents large judgments against the government from generating disproportionate fees, but it still results in substantial sums in large cases.

There is another aggravating factor that people who litigate without planning rarely remember. Each time an appeal is denied, the court may increase the fees already set, up to the legal ceiling. Pursuing weak appeals, therefore, not only prolongs the case but makes losing progressively more expensive.

This logic reinforces a central point: the value of the case is not just a formal number in the initial petition. It serves as the calculation base for sucumbência and, for that reason, shows from the outset the size of the financial risk each party takes on by entering the dispute.

In some situations, the defendant, even though it did not file the suit, is held responsible for the dispute because it improperly resisted the other side’s clear right.

Court Costs, Expenses and Reciprocal Sucumbência

In addition to attorney’s fees, the losing party pays court costs and case expenses. Court costs pay for the court’s services and vary by state and by the branch of the judiciary that has jurisdiction. Expenses include concrete costs of the case, such as fees for experts in technical, accounting or medical examinations, which in specialized cases can reach significant amounts.

While the case is pending, each party usually advances the expenses for the acts it requests, and the plaintiff advances the initial court costs. This advance, however, is provisional. In the end, the loser reimburses the winner for the amounts the winner paid out during the case, which pushes the total bill for losing beyond the fees set in the judgment.

Losing is not always total. When each party wins on some points and loses on others, the result is reciprocal sucumbência, and the judge divides the costs proportionally between the litigants. A plaintiff who asks for one hundred and obtains sixty, for example, bears a proportional share of the burden, even though he or she mostly prevailed.

Free legal aid (gratuidade da justiça) also changes this picture. A beneficiary who loses the case is still ordered to pay, but the right to collect is suspended for up to five years. If the beneficiary’s financial situation does not improve during that period, the obligation expires. Free legal aid does not erase the order to pay; it only suspends collection.

When the Bill Grows Beyond Sucumbência

In certain situations, the cost of losing goes beyond ordinary sucumbência. A party that litigates in bad faith, by asserting a claim against the express text of the law, altering the truth of the facts or using the lawsuit for an unlawful purpose, may be ordered to pay a fine and to compensate the other party for the harm caused.

Manifestly dilatory appeals and failure to comply with court orders can also result in specific fines. Added to sucumbência, these penalties make losing even more costly and underscore the importance of advancing only arguments with a consistent legal basis, avoiding reckless litigation.

How to Gauge the Risk Before Litigating

For businesses and individuals, the practical lesson is to estimate the total cost before filing or contesting a lawsuit. The calculation cannot be limited to the amount you hope to win or save. You must add up the losing scenario: sucumbência fees on the value of the case, court costs, any expert examinations, and the risk of increases on appeal.

This exercise changes decisions. A modest claim may not be worth the sucumbência risk if the legal argument is weak. On the other hand, contesting a lawsuit just to delay the inevitable can multiply the loss, adding the costs of defeat to the original debt. A legal feasibility analysis, done before filing, is the tool that turns this risk into numbers.

The economic size of the parties influences strategy. For an individual, an order to pay fees and costs can strain the family budget for months. For a company, repeated sucumbência risk across many cases turns litigation into a significant line item on the balance sheet, which justifies internal risk-assessment policies before each lawsuit is filed or contested.

Settlements carry more weight in this context. A settlement that ends the dispute before judgment usually waives or reduces the sucumbência amounts, which can mean significant savings compared with a full judgment against you. Evaluating a settlement offer in light of the sucumbência risk is part of strategy, not a sign of weakness.

It is worth noting that sucumbência is not a penalty but a procedural consequence of losing. It serves a dual function: reimbursing the person who had to sue or defend in court and discouraging reckless claims. Seeing it as a structural part of the calculation, rather than a surprise at the end, is what characterizes responsible litigation.

Frequently Asked Questions

Does the party who loses a case always pay the other side’s attorney’s fees?

As a rule, yes. The principle of sucumbência requires the losing party to pay the winner’s lawyer, in addition to court costs and expenses. The most important exceptions are reciprocal sucumbência, when each party loses in part and the burdens are divided proportionally, and free legal aid, which suspends the right to collect for up to five years.

Are sucumbência fees the same as the fees I pay my own lawyer?

No. Contractual fees are agreed between a client and his or her own lawyer to pay for the work contracted. Sucumbência fees arise from losing in court, belong by law to the winning party’s lawyer, and are added to what the party already pays its own counsel. They are separate amounts, with different origins and different recipients.

Can I predict how much sucumbência will cost before filing a lawsuit?

Yes, at least as an estimate. Because the calculation base is usually the value of the case or the economic benefit, you can project the ten to twenty percent range and add foreseeable court costs and expenses. This projection is part of the feasibility analysis and guides the decision to litigate, wait or seek a settlement.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.