OAB 2ª Fase common mistakes
OAB 2ª Fase · Understand the traps and how to avoid them.
Writing the peça (petition) without first identifying the correct procedural vehicle, so the candidate drafts an ordinary action when the case calls for a mandado de segurança, a habeas corpus, or an appeal.
Under exam pressure candidates latch onto the first remedy they recognize and start writing immediately, skipping the disciplined step of classifying the procedural situation before choosing the instrument.
What to do instead
Spend the first five minutes building a short checklist: who is the client, what is the adverse act, what is the deadline, and which instrument fits. Write the chosen instrument and its legal basis at the top of the answer sheet before drafting the body.
Drafting the peça with no factual narrative, jumping straight to the legal arguments, so the examiner cannot see which facts support each request.
Candidates memorize doctrinal structures and treat the facts section as filler, forgetting that the peça must narrate the concrete case before arguing law.
What to do instead
Use a fixed skeleton for every peça: facts, legal grounds, specific requests, closing. Allocate roughly a quarter of the answer to a chronological facts section that names dates, parties, and the contested act.
Failing to state an explicit, itemized pedido at the end of the peça, leaving the requests buried inside the argument.
Candidates write the reasoning as a continuous essay and run out of time, so the requests are implied rather than formally listed, which examiners score as incomplete.
What to do instead
Reserve the last paragraph for a numbered list of requests, each tied to a legal provision. Draft this list in outline before writing the body so the argument tracks each request.
Answering the questions without citing the constitutional or statutory basis, giving only a conclusion such as 'the act is unconstitutional'.
Candidates know the outcome from study summaries but have not practiced recalling article numbers under time pressure, so they argue by intuition.
What to do instead
For each answer, force the pattern: rule, basis, application, conclusion. Build a one-page memory sheet of the twenty most tested provisions per domain and rehearse citing them aloud.
Confusing the regimes of administrative improbity, administrative misconduct discipline, and criminal liability, and applying the wrong statute to a facts pattern about a public agent.
The three regimes overlap factually, and candidates who studied them separately do not practice distinguishing them when the same conduct triggers all three.
What to do instead
Practice sorting exercises: take one fact pattern and write three short paragraphs, one per regime, stating the applicable law, the competent forum, and the sanction. Do this for ten patterns.
Ignoring procedural deadlines and preclusões when answering a civil procedure question, analyzing only the merits of the claim.
Candidates treat procedure questions as substantive law questions and forget that the answer usually turns on timing, preclusion, or the correct procedural posture.
What to do instead
Before answering any procedure question, write down the procedural stage, the last relevant act, and the applicable deadline. Let that timeline drive the answer before discussing merits.
Misapplying the burden of proof and the rules on evidence in penal answers, asserting that the defense must prove innocence.
Everyday reasoning about guilt leaks into the answer, and candidates do not rehearse the constitutional and statutory allocation of the burden in criminal procedure.
What to do instead
Anchor every penal answer in the presumption of innocence and the prosecution's burden, then state which party bears the burden for each disputed fact. Practice with five fact patterns where the defense raises an affirmative issue.
Treating the tax question as a pure calculation or a pure constitutional question, without connecting the factual hypothesis to the correct species of tribute and the rules on competence.
Candidates compartmentalize tax law into constitutional competence and into calculation, and fail to link the two when the exam presents a concrete operation.
What to do instead
Use a two-step template: first classify the tribute and identify the competent entity and the constitutional limits, then apply the statutory rules to the facts. Never answer only one step.
In labor answers, ignoring the distinction between the employment relationship and autonomous work, and applying protective rules to a contractor.
Candidates assume any paid work is employment and skip the legal tests of subordination, habituality, and personal service.
What to do instead
Before arguing, write the four elements of the employment relationship and test each against the facts. State explicitly which element is present or absent, then apply the consequences.
In business law answers, conflating the liability of partners with the liability of the legal entity, or mixing the regimes of the various company types.
Candidates memorize company types in isolation and do not practice applying the separation of patrimony to a concrete creditor dispute.
What to do instead
For each business law question, first name the company type and its liability regime, then state whether the patrimony is separate and under what conditions partners can be reached. Practice with five creditor scenarios.