THE JERUSALEM INSTITUTE OF JEWISH LAW Rabbi Emanuel Quint, Dean This lesson focuses on those situations where the parties participate in the process in selecting the judges who will adjudicate their case. Often there will be agreements that provide for this method of selecting the Beth Din to adjudicate disputes between the parties. This method is distinguished from the situation where there is a Beth Din in place, either established by a community or an organization, such as a Beth Din of the Israel Center (more about that in the future).
The method of each party selecting a judge and the two judges so selecting a third judge has been a true friend of observant Jews throughout the ages. If either party demands that their dispute be adjudicated by a specific Beth Din, and there is no prior agreement to the contrary, then this method cannot be employed. Similarly, if the plaintiff and defendant agree on the judge or judges to adjudicate or arbitrate their dispute, then their agreement is binding and the procedure described in this lesson does not apply.
The procedure commences with the plaintiff selecting a person who will act as a judge to adjudicate his dispute with the proposed defendant. Although the general rule is that a judge may not hear the testimony from one of the litigants if the other is not present, it has become the accepted practice to make an exception when each litigant appoints one of the judges. The reason is that there is no other method whereby the plaintiff can request the assistance of the person he wants to appoint as a judge without familiarizing him with the case.
The judge selected by the plaintiff notifies the defendant in writing that he has been asked to adjudicate the dispute. The defendant has the option to agree to having the dispute judged or arbitrated by this judge, or the defendant may appoint a judge, who then communicates with the judge appointed by the defendant. If the defendant appoints a judge, the two judges so appointed appoint a third judge. In times gone by, the third judge did not require approval of the parties, but the current practice is that the third judge should be approved by the parties. The parties cannot appoint a third judge without the approval of the two judges. If the judge appointed by the defendant is related to the judge appointed by the plaintiff, they may not sit together on the Beth Din and the plaintiff must appoint another judge.
If the two judges cannot agree on the third judge, then the community leaders should be asked to appoint a third judge. Or if the community has an established Beth Din, the Beth Din will appoint the third judge.
In those situations where the judges will be paid, the better practice is for the litigants to pay the judges' fees to the Beth Din and not directly to the judges. Where the litigants do pay the judges directly, the fee must be paid whether the litigant wins or loses. If payment were to depend upon the result of the litigation, the judge would become an interested party in the trial's result.
Either of the litigants may insist that he will appoint two judges and the other litigant will appoint two judges, and the four so appointed will appoint a fifth judge.
Either litigant may recant and appoint another judge, unless he has bound himself in one of three ways, after which he may not longer state that he does not want to be bound by the choice he has made. The litigants may become bound by: (1) a written submission in which both sides name the judges they have selected; (2) by the performance of a kinyan. (Each side hands to the other an object such as a handkerchief or a pen and the other side lifts the object given by the other party and he thereby becomes bound by the agreement to submit to these judges); (3) the parties are bound once either party has commenced to plead before the judges.
During the trial or hearing, each judge may point out to the two other judges the strong points in the case of the party who selected him. It is a grave miscarriage of justice for a judge selected by one of the parties to falsify evidence or to use guile or other dubious methods to enhance the position of the party who appointed him. If the judge appointed by a litigant is convinced, after hearing the testimony and evidence, that the other party is correct, then he must find for the other party. All of the admonitions and rewards promised by the Almighty to a judge who judges impartially and to the best of his ability come into play in this procedure. The judges are not the lawyers for the parties who appointed them, There is a natural inclination for each judge to draw the best possible inferences from the testimony put forward by the party who appointed him. However, the judge may not dispense with his obligation to search for truth in the case.
If either party has selected a judge who may be called as a witness in favor of the other party, the judge should refuse to serve and should act as a witness when called. If he judge refuses to resign and if the other party refuses to appoint another judge, then the matter should be brought to the leaders of the community to decide if the judge can continue to function in the case.
If the appointed judges believe that the case is too difficult for them to decide, they may request the advice of more learned authorities. However, the decision in the case must come from the original Beth Din and from the consulted authority, even if the consulted authority is a well known beth din. There are many reasons why the decision must be rendered by the original beth din and not by the authority consulted. Primary among them is that the oral testimony was given before the original beth din, so only they are able to judge the demeanor of the litigants and the witnesses during the giving of testimony. A more basic reason is that the ultimate responsibility for the decision rests with the original beth din and all of the rules of Hoshen haMishpat chapter 25 dealing with a mistake made by a beth din would not apply in a case in which the consulted authority has no connection with the litigants. In those situations in which the third judge was appointed without consulting the parties, it is not necessary for the original beth din to consult the parties before looking to more learned authority for guidance on how to decide the case. If the third judge was selected with the consent of the parties, there are opinions that the beth din must consult with the parties before consulting other authorities, and there are opinions to the contrary. I believe that the beth din does not have to consult with the parties before consulting a more learned authority.
The subject matter of this lesson is more fully discussed in Vol. 1, Ch. 13, of A Restatement of Rabbinic Civil Law by E. Quint - on sale at local bookstores.
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