Week Seven: Choshen Mishpat 17, How Judges Treat Litigants

This week’s Aruch HaShulchan discusses a de-oraita, a Biblical requirement, whose specifics have no clear definition from sources. I note it because it reminds me of how much of our Torah practice Hashem and the Torah seem to leave open to human interpretation. When Rava, Makkot 22b, mocked people for standing for a sefer Torah, a Torah scroll, but not the Rabbis who interpret it, he knew whereof he spoke.

We start with the obligation to judge be-tzedek, Vayikra 19;15, justly or righteously. Tradition understood that to mean treating litigants the same, because a litigant who feels discriminated against might be muzzled, not advance all his/her legitimate claims, or even forget them in the heat of such treatment, leading to an incorrect verdict.

[A vital point in many contexts: people cannot always advocate for themselves when figures in authority broadcast a lack of respect or interest.]

Basic Rules of Equal Treatment

Judges therefore must be careful not to rush one litigant’s presentation, leaving the other to speak as long as s/he wants, may not seat one while the other stands, or even seat one in a more honored seat. As long as the judges offer the same options to both, though, even if only one accepts, tzedek has not been abrogated.

Se’if six gives more examples. A lone litigant facing multiple others can insist they choose a single spokesperson, or that the court hear the cases one after the other, so s/he not be overwhelmed. S/he can also demand an equal viewing gallery, room for his/her supporters equal to theirs. If one side is playing to a home crowd, the other is disadvantaged.

Except these aren’t objective standards. AH accepts the view of Urim ve-Tumim, the litigants can make agreements about how to conduct the case, and the court go along. Since it’s about their comfort, not objective concerns laid down by the Torah, whatever they say goes.

Parts of a Trial Where the Torah Prefers Standing

During testimony and verdict, however, the litigants and witnesses ideally stand, in keeping with Devarim 19;17, ve-amedu shenei ha-anashim asher lahem hariv lifnei Hashem, the two men [the witnesses, and] those who have the dispute shall stand before Hashem, because the court is a place of God’s Presence.

AH is sure this is a preference, not a requirement, especially because rabbinic judges today are not mumchin, bearers of the original rabbinic certification. We judge today, he says (echoing the Gemara), based on a longstanding shelichut, those original judges having empowered today’s judges to be their messengers for some kinds of cases. In these lesser courts, there is no way standing would be an indispensable obligation.

Some Issues of Standing

Leaning counts as either standing or sitting, AH holds, as long as we don’t treat it as both at the same time [if the judges invite one litigant to sit, and make the other lean, saying it’s like sitting, they cannot then allow the sitting one to lean when it comes time to stand]. On the other hand, Taz and Magen Avraham opposed treating leaning as standing.

If one litigant is a Torah scholar, the court may seat him/her and merely invite the other to sit, the invitation sufficient to avoid a sense of inferior treatment. That holds true even if an officer of the court then orders the non-scholar to stand, as long as it was not the judges. All we need, AH says, is to avoid giving the litigant reason to think the judges have it out for him/her. Barring that, s/he will feel able to advance all the claims s/he wants.

[Seems to me room for discussion. While only the judges are obligated to judge be-tzedeck, if a litigant knows the bailiff or judge’s clerk has it in for him, are we confident that doesn’t affect the litigant?]

For the same reason, a court may stand for a Torah scholar or elderly litigant, because the other litigant knows of the Torah obligation to stand, will not detect or suspect preferential treatment. Se’if four makes the same point about where one litigant sits unbidden; since the court didn’t do it, there is no need to insist s/he stand or invite the other to sit. AH suggests the standing litigant might think s/he now has a leg up, the sitting litigant having shown disrespect by sitting without permission.

Rambam and Tur said the custom was to have everyone sit, to avoid fights and because people no longer have the strength. AH, se’if five, says in his time, many courts have the litigants and witnesses stand, especially for verdict, and any God-fearing Jews will stand to fulfill the verse we quoted earlier, ve-amedu shenei ha-anashim, etc.

(He adds in whose ancestors stood at Sinai, italics mine, this is AH inserting a non-legal adjuration, on a topic where he has just said Rambam and Tur handled it differently],

So: ideally, litigants and witnesses stand for testimony and verdict, with many other ways to handle it, depending on circumstances.

Judges’ Care to Hear the Case Well

Devarim 1;16, hear bein acheichem, between your brethren, and just righteously, has clearer applications. “Between your brethren” teaches judges to hear claims only while both are present (either to avoid any impression the judge favors this litigant, or because first impressions matter, the words of whoever speaks first will linger longer with the judge).

Should one litigant make his/her case, even unwittingly, not knowing this man is going to be the judge, the judge must inform the other litigant, and proceed only if that other agrees. If he does, AH thinks it no worse than many other agreements they can make, such as to have a relative hear a case. But if a Jew starts complaining to a judge, with specifics, he should interrupt, warn that if this continues, he will not be able to sit on the case.

The Parties Must Seek Justice, Not Victory

Litigants, too, may not push their claims before a court without the other party there. It is why they are to enter court together (or have the judges enter last). And yet; if one of the sides is a student of the judge, they may continue their regular study sessions. [I have to think it is only if the other party is comfortable with presenting a case to his adversary’s teacher, but AH does not say it here.]

More generally, a judge should not answer specific questions, for fear a questioner is fishing for information on how to shape a case to his advantage. It is similar to orechei ha-dayanim, lawyers in modern Hebrew, but in the classical usage disdaining those who help clients mold a case for their own purposes. Rashi thought it included banning an outside party from being the one to present to the judge, even accurately [no amicus briefs!]. Nor are we to advise people on how to act at the outset, to strengthen their case, how to turn a situation to their advantage, halachically. [The example is medical fees for a widow, where one arrangement will make it the widow’s problem, another the estate’s concern.]

Ketubbot 52b did allow advising relatives in such ways, although an adam gadol, a well-known Torah scholar, should not [because it looks unjust! Nowadays, lawyers sort of level the playing field, because it certainly doesn’t seem tzedek for the knowledgeable to have an advantage over the ignorant. Still, tradition’s worries over orechei hadayyanim points at the challenge of the line between ensuring fairness and manipulating the system. AH doesn’t address the issue here.]

The Language of the Case

Ideally, each litigant makes his own case, rather than what a lawyer will produce. Should one or both be insufficiently articulate, they are allowed to appoint a mursheh, someone to represent them, discussed further in siman 124.

The judges must understand the language of their claims, se’if eight, although need not speak it fluently, can have a translator for that. Litigants who know two languages can choose which one to use, unless the judge knows only one, we hear in se’if ten.

Urim ve-Tumim allowed an interpreter if no judges in the area know the language, or if a Jew and non-Jew ask him to hear their dispute (in a local tongue the judge did not know). In such instances, he must be careful not to converse with the Jew in Yiddish or Hebrew, lest it feed a sense they are conspiring against the non-Jew, a desecration of God’s Name, says AH. [Note, easy to miss, Jewish judges’ reputation was good enough for non-Jews to feel comfortable having them hear the case, and they must avoid the impression of being unjust.]

Managing the Case

The judge primarily listens, for fear he will mistakenly lead a witness or litigant. If he did not understand something, he can ask, being careful not to insert or suggest ideas. When one side makes a claim which does not do the work they expect—such as introducing only one witness, who only obligates an oath—the judge should not interrupt, should wait for the other’s response. Unless a litigant makes a false claim about how halachah works, the judge must worry the other litigant might believe it and give up.

On the significant other hand, in se’if fourteen, we have the obligation of ptach picha le-ilem, open your mouth for the mute. Should a judge see a litigant unable to make his/her much better arguments, he steps in. [This somewhat replaces lawyers, although it is not clear how well it works in practice, especially because] AH cautions the judge doing so, it distressingly easy to slip into saying too much. For orphans, judges always act in support.

The same applies to where a litigant isn’t claiming all the money due, se’if nineteen. For a righteous person, whom the judge trusts to admit if s/he is not entitled to some payment, AH thinks the judge can point out this other issue.

Coming to Verdict

Going back to se’if eleven, Shlomo HaMelech in I Melachim 3;23 reviewed aloud each mother’s claim (in the cut-the-baby story), a model judges should follow, to convince the parties they have been accurately heard. [What is the halachic standing of this rule? Shlomo did not require it, so it’s not divrei kabbalah, a rule set up in navi; it’s more a model of our Jewish understanding of the nature of justice.]

Se’if seventeen says the judge(s) must rule as soon as he/they know the verdict, otherwise it’s avel, a perversion of justice (I think because a nervous litigant, fearful of a negative verdict, might settle a case s/he was about to win).

In se’if twelve, AH notes the human tendency to avoid admitting we were wrong. For a judge, it can lead to finding only the reasons to support his ruling. Wrong for a judge he says, who should consider all evidence. Many great Torah scholars have admitted to being wrong, a judge should always look for the truth.

Along the same lines, se’if sixteen brings up Vayikra 19;15, a judge may not favor a poor or rich litigant, by ruling for the poor person, wrongly, to get him communal support he deserves anyway, nor rule for the rich to preserve dignity, have him/her privately pay.

The verdict must be the verdict.

Nor may litigants’ relative righteousness affect the judge, lead him/them to assume the more righteous one is telling the truth, the wicked one lying. While the case is being heard, the court should assume they are all liars, after the verdict finding ways to judge favorably even the one found to be in the wrong.

Some of the hard balance to strike in attempting to ensure Jewish courts bring tzedek to the world, by how they conduct their court cases and reach their verdicts.

Adapted from articles previously published on Torah Musings