Anashim asher lahem hariv lifnei Hashem, the two men [and] those who have the dispute shall stand before Hashem, read by tradition to refer both to the witnesses and litigants, who stand because the court is a place of God’s Presence.
However, AH is sure this is a preference not a requirement, especially because rabbinic judges today are not mumchin, bearers of the original rabbinic certification, allowing them to judge all sorts of cases. We judge today, he says (echoing the Gemara), based on a longstanding shelichut, being empowered as messengers, by those original judges.
Some Issues of Standing
Se’ifim 2-5 discuss kinds of standing. Leaning counts as either standing or sitting, for a judge or litigant, AH holds, as long as the same case doesn’t treat it as both at the same time. On the other hand, Taz and Magen Avraham held that witnesses should stand, not lean.
If one litigant is a Torah scholar, sitting again becomes an issue. The court may seat the scholar and invite the non-scholar to sit, the invitation sufficient to avoid a sense of inferior treatment. That’s true even if someone afterwards ordered the non-scholar to stand, even an officer of the court, as long as it was not the judges. All we need, AH says, is to avoid giving the litigant any reason to think the judges have it out for him. Barring that, s/he will feel able to advance all the claims s/he wants.
For the same reason, the court may stand for the Torah scholar when he first arrives, or for an elderly litigant, because even an ignorant other litigant knows there is a Torah obligation to stand for such people, and will not experience it as 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. AH suggests the standing litigant might think it helpful to his side, because of the disrespect the sitting litigant has shown for the court.
Se’if five demonstrates the rules’ flexibility, depending on conditions. Rambam and Tur said the custom was for everyone to sit, to avoid fights and because people no longer have the strength to obey these laws fully, but AH says in his time, many courts have the litigants and witnesses stand, especially for verdict, and any God-fearing Jews, whose ancestors stood at Sinai [italics mine, because this is AH inserting a non-legal adjuration], will stand to fulfill the verse we quoted earlier, ve-amedu shenei ha-anashim, etc.
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
Another Torah law, with clearer applications, is Devarim 1;16’s requiring judges to hear bein acheichem, between your brethren, and judge justly. The idea of “between your brethren” is taken to establish a rule to hear claims only while both litigants are present (to avoid the impression the judge favors the one s/he has already heard, or that getting the first hearing will linger longer with the judge). AH quotes Zohar’s emphasis on this rule, a topic of its own, when and to what extent we accept Zohar’s ideas within halachah.
Should one litigant make his/her case, perhaps unwittingly, not knowing this man is going to be the judge, the judge has to inform the other litigant, and proceed only if that other litigant decides to accept it. AH points out it is no worse than if litigants agree to present their case to someone not legally qualified—a relative, for example—another place where Torah law did not mind the litigants adjusting the rules to their needs. But if a Jew starts complaining to a judge, presenting details of his/her case, the judge should interrupt, warn that if the conversation continues, he will not be able to sit on the case.
The Parties to the Case Must Also Seek Justice, Not Victory
The prohibition, by the way, applies to the litigants, too, they are not allowed to try to get their claims before the court without the other party there. It is the reason the parties are supposed to enter court together (or have the judges enter last), although if one of the sides is a student of the judge, and they have regular study sessions, those can continue. [I have to think this is only if the other party is comfortable with presenting a case to the teacher of his adversary, but AH does not say it here.]
More generally, a judge should not answer very specific questions on civil law, for fear the questioner will use the information to shape a case to his advantage. Tradition disdained orechei ha-dayanim, lawyers in modern Hebrew, but in the classical usage those who help clients shape a case their way.
Rambam prohibited teaching litigants how to make their case better, Rashi thought an outside party could not present arguments to the judge, even accurate ones [no amicus briefs!]. Nor are we to advise people on how they could act in the original interactions to strengthen their case, how to turn the situation to their advantage, halachically. [The example is medical fees for a widow, where one arrangement will make it the widow’s problem, another would make it 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 captures the problem with finding 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, because we expect them to give exactly their perspective, rather than the polished and shaped version a lawyer will produce. Should one or both be insufficiently articulate to make their case, they are allowed to appoint a mursheh, someone with the right to represent them, discussed further in siman 124.
The judges must understand the language of the claims, se’if eight, although they may employ an interpreter to speak for them if they do not speak that language fluently enough to conduct the case. Where the litigants know two languages, they can choose which one to use for the lawsuit, unless the judge knows only one, we hear in se’if ten.
Urim ve-Tumim allowed hearing the case through an interpreter if no judges in the area know the language. For the same reason, a judge can use an interpreter if a Jew and non-Jew ask him to hear their dispute. In such instances, he must be careful not to converse with the Jew in Yiddish or Hebrew, lest it feed the non-Jew’s sense they are conspiring against him/her, which would desecrate God’s Name, says AH. [There are two points easy to miss here, that Jewish judges’ reputation for honesty would make non-Jews comfortable judging before them, and they then must avoid the impression of being unjust.]
Managing the Case
The judge is supposed to mostly listen, for fear he will unwittingly lead a witness or litigant. If he did not understand something that was said, he can ask, but must be careful not to insert or suggest ideas. When one side makes a claim that would not help them win the case—such as introducing one witness, who only obligates an oath—the judge should not interrupt, should wait for the other’s response. Unless one litigant makes a false claim about how halachah works, where the judge must worry the other litigant might believe it and give up.
On the significant other hand, in se’if fourteen, AH notes the obligation of petach picha le-ilem, open your mouth for those who are mute. Should a judge see a litigant with much better arguments, who is unable to make them on his own, he is supposed to step in. [This is somewhat the answer to the lawyer question, although it is not clear how well it works in practice, especially because] AH warns the judge to act carefully, it being distressingly easy to slip over into saying too much. For orphans, however, judges are always supposed to act in support.
The same balance applies to where a litigant isn’t claiming all the money due, se’if nineteen. We assume litigants ask for all that’s coming to them, unless the judge sees the litigant does not know. 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’s actions in I Melachim 3;23, where he reviewed aloud each mother’s claim (in the famous cut-the-baby-in-half verdict), teaches us judges should repeat the claims to the parties, so they feel comfortable 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 longstanding understanding of the nature of justice. What would that mean if a judge did not do it, or there was some pressing reason not to?]
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 might do something rash, for fear of the verdict, such as settle a case he was about to win).
In se’if twelve, AH warns a judge not to seek out only those reasons to justify a ruling that leaves him uneasy. Many great Torah scholars have admitted to being wrong, and the judge should always look for the truth.
Along the same lines, se’if sixteen brings up Vayikra 19;15 [Torah law alert], the judge may not favor either a poor or rich litigant. The judge may not rule for a poor person, wrongly, to help him with communal support he deserves, nor rule for the rich one to preserve his dignity, and then have him privately pay what he owes. 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 is 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 be struck in attempting to ensure Jewish courts bring tzedek to the world, by how they conduct their court cases and reach their verdicts.
