THE JERUSALEM INSTITUTE OF JEWISH LAW Rabbi Emanuel Quint, Dean In the last lesson we commenced the discussion of the parties being treated equally in the Beth Din. There are a few more points regarding this subject.
Except as set forth in lesson #14, the judge, cannot hear the pleas of the litigants not in the presence of the other litigant. The Beth Din should not hear the witnesses of one of the parties not in the presence of the other party.
When the verdict is announced both litigants should be present. There was a time when the litigants used to stand when the verdict was announced. Nowadays this is no longer practiced.
Where possible, the litigants should testify in the language that is being used by the Beth Din.
If a party or a witness has difficulty with that language, then such party or witness may testify in a language with which he feels comfortable. The Beth Din on oral examination can determine whether the party or the witness is truly not able to testify in the language of the Beth Din. If they find the claim is valid then they should appoint an interpreter to translate the testimony and the pleas.
Whenever possible, the judges should hear the witnesses testimony in the language in which they are spoken. If the judges hear the words directly from the litigant or the witness, they have a better grasp of what is being said. They can also determine the person's demeanor. Certain nuances may be lost even in a good translation. If the judges do not understand the language spoken by the litigant or a witness, then a Beth Din appointed interpreter should be use to translate the pleas and the testimony. If an interpreter is used, each side reserves the right to question his credentials to act as such. Each side may also question the accuracy and adequacy of the translation. Chazon Ish suggests that one of the reasons that a trial becomes difficult when interpreters are used is that the questions and answers are then given in choppy sequences while waiting for the interpreter's translation.
If the Beth Din is judging a case between a Jew and a non-Jew, then the judges should not speak in a language that the non-Jew does not understand; otherwise, he may suspect that the judge and the other party are conspiring against him because he is a Gentile. Such action will desecrate the Name of Heaven.
After the Beth Din hears the pleas, one of the judges of the Beth Din must repeat them so that there can be no mistaking their meaning. Some authorities hold that this applies only to a single judge, but if there are three judges, then the judges can review the pleas among themselves. I believe that the procedure should be uniform no matter how many judges are judging the case. When I preside at a Din Torah or arbitration, and the litigant has stated his pleas and has explained them, I ask, do you mean to say the following, and tell him what I think he said, and most often the answer is yes. But occasionally the litigant will say, "not exactly" and explain further. Most pleas are now in writing and if the judges have difficulty understanding the written pleas, as is often the case with laymen litigants, we ask for clarification.
The judges should not help any litigant in presenting his case. The judges should not tell the litigant before the close of their case that they have failed to make out a case or defense. There is also strong contrary authority. If he judge sees that the litigant is struggling to express his views then the judge may, with great discretion, offer some help to the litigant in expressing himself. This should be done only in the rarest cases and only after much deliberation. The judge should not intrude himself into the case to help either side. We recently had a case where the plaintiff lived alone for many years and hardly communicated with people at all. He had extreme difficulty in expressing himself. I declared a recess during which time some of the men went into the hall to smoke or to the restrooms. This gave the litigant a chance to speak to all those present about matters such as the weather and politics. After the recess, he felt more at ease and was able to express himself more easily.
In rendering its decision, the Beth Din shall not favor the poor person with mercy by thinking that the other party is so rich that he will not even miss the small amount of money being awarded to the poor person. In rendering its decision the Beth Din shall not favor the mighty or important person by rendering a decision in his favor and later telling him privately to pay the other party the amount that they really believe should have been awarded him. The same holds true in all comparable situations, as where one of he litigants is a wicked person, or a scholar, or an unlearned person. Each litigant's claims should be thought of as equally false until he proves them to the satisfaction of the Beth Din.
If a litigant or his attorney makes a false statement of the law in an attempt to intimidate the other litigant, the judge is permitted to state that the law is otherwise. On several occasions, after a lawyer for one of the litigants stated that the law is obviously on the side of his client, and the other side was not represented by counsel, I responded by saying, "Leave the questions of law to the Beth Din." That gave the unrepresented litigant the satisfaction of knowing that Beth Din did not necessarily agree with the statement of the lawyer as to the law. Rambam in Laws of Sanhedrin chapter 20, law 6, states, "the verse that appears in Leviticus 19:15 "You shall do no unrighteousness in judgment" teaches that the Beth Din may not pervert justice by acquitting the guilty or by condemning the innocent. It also refers to the Beth Din that delays judgment.
If a Beth Din has second thoughts about a decision after it has been rendered, they should not attempt to rationalize the decision. Rather, they should consult a leading authority as to what to do. If the greater authority advises that the original decision was not correct, or if the Beth Din itself believes that it made a mistake, then the Beth Din must retract the decision.
The subject matter of this lesson is more fully discussed in Vol. 1, Ch. 17, of A Restatement of Rabbinic Civil Law by E. Quint - on sale at local bookstores.
Address comments to quint@inter.net.il
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