I commanded your judges at that time, saying, "Hear cases between your brothers, and judge righteously between a man and his brother and the foreigner who is living with him."
The Ohr Hachaim, as he often does, notices the word לֵאמֹּר. This word usually means the listener must give the message to someone else. Here, Moshe Rabbeinu is commanding the judges directly. Why does this word appear?
The Ohr Hachaim writes that sometimes the Torah uses the word לֵאמֹּר to denote that the speaker is paraphrasing, not quoting precisely. That could be the meaning of the word in this context, but he does not explain why Moshe would not quote Hashem precisely.
He adds, based on a Yerushalmi, another explanation. The Yerushalmi says that Rav Huna said, “When I saw a person in Beis Din who did not know how to talk, I used to open up for him, as the possuk (Mishlei 31:8) says פְתַּח פִּיךָ לְאִלֵּם - open your mouth for the dumb. Moshe was telling the judges that they should talk to others, not merely listen. They needed to open people’s mouths by talking to them and opening the argument.
The Ohr Hachaim then offers another explanation. The Halacha is that a Dayan needs to not only listen to the two litigants, but he must repeat their claims before he makes his decision. The possuk (Melachim I 3:23) says וַיֹּאמֶר הַמֶלֶךְ זֹּאת אֹּמֶרֶת זֶה בְנִי הַחַי וּבְנֵךְ הַמֵת וְזֹּאת אֹּמֶרֶת לֹּא כִי בְנֵךְ הַמֵת וּבְנִי הֶחָי - Then the king said, "The one says, 'This is my son that lives, while your son is the dead one'; and the other says, 'No, for your son is the dead one, and my son is the living." Prior to rendering his decision, Shlomo Hamelech repeated the two claims.
Moshe was telling the judges that they must talk, they must repeat the claims that were said.
The Ohr Hachaim explains further what the Torah means with the words שָמֹּעַ בֵין אֲחֵיכֶם - Hear cases between your brothers. Did someone think that they should decide cases without hearing the two sides? Additionally, he asks why the Torah says שָמֹּעַ and not שִמְ עוּ as we would expect.
The Ohr Hachaim explains that the Dayanim are being admonished by Moshe Rabbeinu how to treat the litigants in a case. They must listen and constantly listen, without getting fed up. This applies to two aspects of the case. A litigant may talk and talk, constantly bringing up new claims and ideas. The Dayan may not get fed up of the speech of the litigants, and must listen to each claim carefully. When they bring proof to their words, the Dayan should not arrogantly dismiss their words, claiming that the proofs are irrelevant. He must accept each one and decide on it individually. Additionally, when a new litigant walks into Beis Din, the Dayan should not say that he has worked hard enough on that day already and cannot listen or accept a new case. He must exert himself to listen to the case and not push it off till tomorrow. Chazal tell us that terrible punishments await those who push off justice, and the source for this prohibition is this possuk. The possuk is telling the Dayan שָמֹּעַ בֵין אֲחֵיכֶם – constantly hear cases between your brothers. Do not stop hearing the case, and do not stop accepting new cases.
Another explanation offered by the Ohr Hachaim is that the possuk tells the Dayanim to listen carefully to the claims. Merely listening to the wording of their claims is insufficient, the Dayan must pay careful attention to the cadence and underlying tone. Sometimes, they will notice that the truth is the precise opposite of the words that are emerging from their mouths.
The word שָמֹּעַ could also mean ‘understand’, and the Dayan is admonished to use his understanding when the litigant is talking to make sure the truth emerges.
Another explanation is that the Mishna (Makkos 6b) says that Beis Din must hear directly from the person, not through a translator. This possuk is the source. Even though it is self-understood that a Dayan must know the case to decide on it, this possuk says that his knowledge must come from direct hearing, not through an intermediary.
The Ohr Hachaim then offers another explanation. A Dayan is commanded to treat both litigants equally; they may not act toward one party with greater respect or affection. The possuk reads now שָמֹּעַ when you listen to the claims; it must be בֵּין אֲחֵיכֶם - between your brothers. If you uplift your eyes to one, you must do so to the other too. If you lower your eyes to one, you must do so to the other one too. It is more likely that the Dayan should not lift up his eyes at all. If he does, one litigant might think that the Dayan is showing the other one more favor, and he will be uncomfortable bringing up his claims.
The great Chacham, a close friend of the Ohr Hachaim, Rav Moshe Birdugo zatzal, was careful to keep his eyes lowered throughout any Din Torah, knowing that lifting up his eyes to one of them would cause the other to feel less than.
The possuk now means שָמֹּעַ בֵּין אֲחֵיכֶם listen to your brothers, don’t do anything but listen, don’t have any other interaction with the litigants besides listening to them talk, וּשְפַּטְתֶם צֶדֶק- and you shall judge with righteousness, without making any mistakes.
