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.
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
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.