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.