THE JERUSALEM INSTITUTE OF JEWISH LAW Rabbi Emanuel Quint, Dean The Beth Din system is the agent of the Almighty in meting out justice in disputes between people. The Creator of the hundred billion galaxies and the Sustainer of the Universe has delegated one of His functions to man - namely, the meting out of justice. (Partially, and with specific guidelines; He retains for Himself many aspects of Justice. - PC with permission of the author)
Each judge must acquaint himself with the ethical literature of the Sages. As a start, Avoth, together with some of the classical commentaries, should be compulsory reading for every judge. Whatever laws appear in this work are addressed to the judges of the Beth Din.
The Bible is replete with admonitions to act fairly in meting out justice. It is stated in Leviticus 19:15 "You shall do no unrighteousness in judgment; you shall not respect the person of the poor, nor favor the person of the mighty; but in righteousness you shall judge your neighbor." (A word commonly used in the Bible for justice is 'zedek'. Mandelkorn's Concordance on the Bible lists over 260 verses that contain a reference to zedek or one of its derivatives. It also lists over 400 references to mishpat or judgment.)
Meting out justice commences with treating the parties to the litigation equally in all respects. If the parties are not treated equally, then the one who feels that he is not being treated fairly will feel intimidated or helpless and will, either consciously or perhaps unconsciously, fail to put his best case forward. Many people are nervous enough when they are summoned or appear in Beth Din. To feel intimidated adds to their nervousness.
Rambam in Laws of Sanhedrin chapter 21, law 6 states: "It is essential that both litigants be alike in the judge's estimation and affection. The judge who does not know either litigant and the life he leads is in the best available position to render a righteous judgment."
The names in the summons should be formulated in the same manner. That is, honorary titles should not be used in describing one of the parties while the other party's name appears without a title. In this day and age it is better to write names only. Some ladies want to be addressed as Miss or Mrs. or Ms. Why should a lady be offended because the clerk of he Beth Din did not know her preference.
When the litigants appear in Beth Din, one should not be welcomed in a more friendly manner that the other. One should not be afforded more honor than the other party. There was a time when the parties were asked to dress in the same manner of clothing so that one would not feel inferior to the other. If one could not afford to dress in the same manner as the other, then the wealthier party was told to provide the poorer with clothing similar to his own.
One should not be given a more prominent place to sit. There should be equal numbers and types of chairs available for both parties. Although originally the rule was that the judges sat and the litigants and witnesses stood, nowadays the custom is for both litigants and witnesses to sit during the trial.
Each litigant, or his counsel should be permitted equal opportunity to be heard. If a time limit to present pleas is set, it should be equal for both parties. The parties and their counsel should be so advised before they start. When I preside at a Beth Din I usually ask the litigants and/or their counsel to make an opening statement limited to about one-half hour for each side to acquaint the judges of the Beth Din with the facts as seen by each side. This is after we have had the written pleadings before us for several weeks to study. Thereafter the parties are not restricted as to time to present their side of the case. There is no limit to the time they wish to take to present evidence and witnesses. They may make any statements they want and each side is give wide latitude and time to rebut the testimony and witnesses of the other side.
When both sides have concluded their presentations, they are once again afforded about an hour each to present closing statements. If any of the judges has questions, they will ask them during the trial but in such places that the presentation of the litigant is not interrupted to his disadvantage.
If there are several litigants on one side and fewer litigants on the other side, the Beth Din should make arrangements so that the side with the fewer litigants does not feel intimidated. This could be done, for example, by restricting the number of litigants who can recite their pleas, or perhaps by having them state their pleas and then leave the seats reserved for the litigants. I have never had such a situation where one of the litigants was asked to make room for others. The sides always leave feeling that we were fair.
The hardest situations arise where a kablan, contractor is suing or being sued for repairs made for a house belonging to a young couple. When the wife's mother, the mother-in-law of the young husband is present, she usually takes over from the plaintiff or defendant son-in-law. The son-in-law rarely wants to say anything fearing he will not say the right thing or say something that contradicts his mother-in-law. These cases are rarely settled if the mother-in-law does not approve. We had a trial the other day and we thought that the mother-in-law did all that she could to exasperate the kablan. That was until her husband showed up late. He said he was amazed at his wife that she had made concessions to the kablan. In actuality, she had not conceded a thing. No mother-in-law ever intimidated the kablan as did this particular father-in-law of the husband. The kablan said he would settle on their terms if the father-in-law promised that he would represent the kablan if he ever had other litigation. They, the kablan and the father-in-law, walked out hand-in-hand, and we did not have to make a decision in the case because the parties settled it by themselves in the waiting room. The son-in-law waited until they were in the elevator until he left the room. The young wife said to her husband, lets not tell them if we are ever sued again.
There are some other rules I propose to ensure equality in the Beth Din and they will be set forth, IYH in the next lesson.
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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