Judging Fairly

  1. 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 other.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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. 
MDhalachalMaase is written by HaRav HaGaon R’ Shammai Gross
Translated by Rabbi Tzvi Abraham