From the verse “Hear the causes of your
brethren…” (Devarim 1:16), Chazal learned that the claims of litigants
should not be heard by the court unless both are present. A litigant that
presents his case when the other is not present is likely to lie—there is no
one present to contradict him—and once the judge is inclined to favor one
litigant, he will not be inclined to see the merits in the claims of the
Just as judges are forbidden to hear the
claims of one litigant unless the other is present, a litigant is forbidden
to press his claims unless the other litigant is present. And even if the
court has heard the arguments of both litigants, until the decision of the
court is given, one litigant may not discuss his case with a judge unless
the other is present.
A judge may not say or write to one litigant
what the decision of the court would be if what one of them said is true,
and it is forbidden for a judge to communicate his opinion to a litigant
without making a psok until he has heard the arguments of both sides,
for the litigant may decide to lie in order to say what he learns, from what
the judge says, is necessary to improve his case. Also, the second litigant
may present arguments which require the judge to change his mind, and that
would compromise the dignity of the judge.
The judge is forbidden to hear the claims of
one litigant if the other is not present even if the litigant proposes to
present the arguments of the other litigant in addition to his own.
If one litigant tells the judge that the
other litigant has requested him to present the dispute to the judge, the
judge should not believe him, for it often turns out that the litigant lied.
If one litigant brings a document signed by the other litigant in which it
is clearly stated that one litigant agrees that the other present the issue
before the judge, the judge may then allow the litigant to present the case.
If a person asks a question pertaining to financial matters, before
answering him, a judge should ascertain that the person asking it has no
financial interest in the answer he gives.
A judge who hears the arguments of one
litigant when the other litigant was not present must remove himself from
the case unless the second litigant agrees that he may, nevertheless, judge
the case. Similarly, if a second judge has consulted him and he has given
his opinion, he may no longer judge the case, for he has an interest in
maintaining the decision which he gave.
The dinim we have been discussing are
issurei deoraiysa (Torah law). Apart from their intrinsic importance,
violating them compromises the dignity of the court and is likely to
exacerbate the conflict between the litigants. Judges should remember that
when a litigant presents his case, it can be so convincing that he may be
inclined to decide in his favor, until he hears the other side and finds
that the arguments of the second litigant put an entirely different
perspective on the matter.