Parshat VaYetzei: Choshen Mishpat 17, How Judges Treat Litigants
This week’s chapter of Aruch HaShulchan provides another example of an halacha de-oraita, a Biblical requirement, whose parameters are open to multiple options, without clear guidance from sources. The Torah requires judges to judge be-tzedek, Vayikra 19;15, justly or righteoulsy. Tradition understood that to mean treating the litigants the same, because a litigant who feels s/he is being discriminated against might not remember or might not advance all of his/her claims, leading to an incorrect verdict.
[The point matters in many contexts, but certainly when courts, rabbis, or anyone in power signals a lack of respect or interest in someone, that person/people’s reactions are not solely their fault.]
Basic Rules of Equal Treatment
Judges therefore cannot be nicer or meaner to one litigant, nor hurry one along in his/her presentation of claims, seat one while the other stands, or seat one in a more honored seat. None of those actions are wrong, they are only wrong if offered to one and not the other; as long as the judges hold out the same options to both, even if only one accepts, they have not hurt the cause of tzedek.
Se’if six offers examples of tzedek in managing disparities of representation; if many people are suing one, or vice verse, the one can insist the many choose a spokesperson, or that the court hear the cases one after the other, so he not be overwhelmed. The lone litigant can also insist on the other side reducing their support in the gallery, have fewer friends and family attend court for the other side, even if they offer him/her the chance to bring his own supporters. The difference too clearly threatens the single person’s comfort laying out his/her side of the story.
In a perfect example of what I am trying to highlight, AH in se’if six ratifies the view of Urim ve-Tumim, the court must accept whatever agreement the litigants make about the conduct of the case. It teaches us this whole topic is about their sense of comfort or not, not some objective procedure laid down by the Torah.
Parts of a Trial Where the Torah Prefers Standing
During testimony and verdict, however, both the litigants and witnesses should ideally stand, because Devarim 19;17 says ve-amedu shenei ha-
