Judging the Judges – Part 4: Your Honor the Lawyer

 

 

Author’s note – This is a renewal of a series of posts from 2017. You can see Part 1 HERE, Part 2 HERE, and Part 3 HERE.

 

יהודה בן טבאי אומר, אל תעש עצמך כעורכי הדיינין.

Rabi Yehuda ben Tabai says: One [who judges] should not make himself as an advocate.

 

 

Another few months will mark the “Bar Mitzvah” of the great People’s Court fiasco that occurred in December of 2010.

To save myself a lot of effort, I will reprint the story and some associated commentary as it was related by Rabbi Yaakov Menkin in Cross Currents right HERE:

A couple named Heidi and Mendi inadvertently placed a custom, human-hair sheitl (wig) in a dry cleaning bag. The dry cleaner, rather than setting it aside, dry cleaned it — which completely destroyed it. [They proceeded to sue the dry cleaners for damages. – YH]

 

The couple foolishly decided or agreed to let their case appear on The People’s Court, a popular television show in which a retired judge hears the case, conducting a binding arbitration session in front of the cameras. The couple says that their intentions were good — that even if the dry cleaner lost the case, she would end up being paid more for the TV appearance then she lost in the decision. Nonetheless, it was obviously foolish for an Orthodox couple to go on the show. First of all, for a young woman to claim she has “nothing to wear” unless she has a $3000 custom wig says something about a segment of our community that I think we ought to be very hesitant to display in front of the world. To blame a dry cleaner for not knowing that a wig in a dry cleaning bag isn’t supposed to actually be dry cleaned is questionable, and to expect a dry cleaner to know the outrageous value of a custom, human-hair wig is itself completely outrageous.

 

But that wasn’t why the judge got angry at the couple.

 

In her closing remarks, the judge claimed to have called up the Georgie wig company to check the facts [emphasis mine – YH], and was told that there had been no such purchase. As described in the Forward:

  

The couple presented a Georgie invoice for $3,000. But the suspicious judge phoned the wigmaker during a recess — and found out they don’t even stock the wig at the center of the case. And the real $3,000 perruque? “You are passing this excellent wig on your head, that costs $3,000, as the receipt for the wig that you want to be recompensed for here,” said Judge Milian, pulling out the invoice with a flourish.

 

What followed was a tremendous hue and cry from the Orthodox community — against the couple. I am not talking about the purportedly-Orthodox gossip blogs, from which we would expect no better. I am talking about Orthodox rabbis who were strident in their immediate condemnation of the couple for the tremendous Chilul HaShem, desecration of G-d’s name, caused by their dishonesty.

 

The aforementioned dishonesty, as it so happens, may not even exist — and we only know it due to Rav Yair Hoffman’s personal effort to hear the other side of the story. There are two companies called “Georgie,” resulting from a very unpleasant breakup between Georgie herself and her ex-partner (and ex-husband) many years back. Georgie herself was in France during the trial. The judge never spoke to her. Georgie says that she knows the couple well, recognizes the destroyed wig as her work, and personally put together (in under 24 hours) the wig that Heidi now wears.

 

The judge decided to do her own detective work, called Georgie International instead of Georgie herself, and leaped to conclusions. And much of the Jewish world went right with her.

 

We have an obligation to judge our community and its citizens favorably.

The main line in Rabbi Menkin’s narrative which turns the whole case around are the bolded words: The judge decided to do her own detective work.

He is rightly criticizing the judge because judges are not supposed to do that.

For a more detailed explanation of the problem, I cannot say it any better than Rav Yair Hoffman did in the Yeshiva World News article that Rabbi Menkin is referencing. You can see it in its entirety HERE.

Here are the relevant excerpts from his essay (slightly edited, emphasis is mine):

 

France and the United States are very different countries.  The judicial system in the United States is an adversarial system – the role of the judge is that of an impartial referee between the two sides.  In a civil case, the judge referees between the two litigants; in a criminal case, the judge referees between the prosecution and the defense.  But our judges do not engage in investigation.

 

In France, on the other hand, the court system is an inquisitorial system. There, the court is actively involved in investigating facts of the case. What the judge did in the now infamous sheitel case was engage in the investigation of the facts, in the short twenty-five minute interval that she took while the filming was taking place.

 

In the judge’s “investigation,” she spoke to witnesses and arrived at a conclusion without a] identifying who these witnesses were and b] giving the opportunity for cross-examination. The fact that representatives from both Georgie companies are stating that the judge had contacted the wrong company for identifying the origin of the wig is irrelevant to our discussion here – what is now being discussed is the underlying procedural issue.

 

In both halacha and, lehavdil, secular legal systems, the right to ask, question, and cross-examine witnesses is one of the safeguards that ensures integrity, accuracy and justice. Cross-examination is the best and most indispensable way known to the law for discovery of truth [see Davis v. Arkansas Best Freight System, Inc., 239 Ark. 632, 634-635 (Ark. 1965).]

 

This is a right also found in the confrontation clause of the sixth amendment to the United States Constitution.

 

The judge, in this case, also made an accusation and did not even allow “Heidi and Mendi” to respond – much less cross-examine.  The judge’s actions here undermine the very concept of justice enshrined in thousands of years of secular legal codes.  In secular law, it first appeared in the Roman legal system, travelled to and codified in Justinian law of the Byzantine Empire, made it into English Common Law then British law. Ultimately, it became the law of the United States of America.

 

Lehavdil, the Shulchan Aruch had codified this halacha that dates back in Jewish law to thousands of years before the Romans developed it. Choshen Mishpat (28:15) states as follows: “We do not accept testimony from witnesses outside of the presence of the litigant.” The SM”A cites the Talmud (Bava Kamma 112a and 112b) that traces the origins of this concept back to the Bible itself.  The verse in Exodus (21:29) states, “But if the ox had gored previously and the day before and there was a warning before the owner...” is expounded to mean that the owner of the ox must be present at testimony to this point.

 

What is the reason for the rule that the testimony must be before the litigant?  The Ramah (CM 110:9) clearly indicates that there is a concern for error. Interestingly enough, the same type of error that it is alleged by both Georgie companies has occurred here.

  

… according to Rashi (Dvarim 1:16), the Torah warns judges, “Havei masunim badin – be very careful and deliberate in your judgment.”  One hour just doesn’t seem to cut it.  People’s Court may be a court of arbitration – but it is far from justice.

 

We all know that the expression that Rashi quotes in Devarim 1:16 appears in the first Mishna of Pirkei Avos. Although Pirkei Avos are rules for all of us, it was specially aimed at the Talmidei Chachamim and dayanim. This is evident from the very first Mishna. Pirkei Avos states numerous concepts that apply exclusively to Rabbanim and dayanim. One of them is אל תעש את עצמך כעורכי הדיינים. Do not make yourself as advocates.

Judges are not supposed to be advocates. They are not supposed to be lawyers. They are supposed to be referees, exactly as stated by Rabbi Hoffman.

The purpose of this post is not to celebrate the Bar Mitzva of this sordid episode. It is to mourn the fact that such occurrences – judges acting as lawyers - are all too common.

 

Here in Israel, the court system is rife with double standards. There is no constitution and there is no Bill of Rights. I believe it is the only “Western” country that does not have trial by jury for criminal cases. I already lamented this fact in this post.

Laws and rules do exist, but many judges view these rules as mere “suggestions”, not as anything they are bound to. Unfortunately, this has even spilled over to our Batei Din which is an upcoming subject that I intent to discuss at length. The overwhelming philosophy is רק אין יראת אלוקים במקום הזה. This applies both in the secular courts and in Beis Din, but now I am focusing on the secular courts.

 

There is one concept in Israeli litigation law that I am not aware of an equivalent in the US. This is called הרחבת חזית. Literally translated it means “broadening the front”. The “front” that is being referred to is the battle “front” between the two sides or, in other words, the point of contention.

What it means is if a plaintiff files a claim of damages against a defendant, the claim must clearly spell out all the reasons he holds the defendant to be liable. The plaintiff may not surreptitiously add more points of liability at a later phase of the litigation unless he formally requests permission from the court to amend his claim.

The logic of this is obvious. The defendant’s task is to address the plaintiff’s claims and show why they are not valid. The defendant cannot defend himself against claims or points that were not presented to him. If the plaintiff suddenly springs new allegations at the evidentiary hearing or in summation and the defendant is not prepared or does not have the opportunity to respond to the added allegations, it impairs his defense.

This actually can work both ways. The defendant must initially respond to the claims with a ktav haganah – writ of defense. The plaintiff then has the opportunity to contest the defendant’s defenses. Here again, if the defendant is going to suddenly spring new defense points at a later point when the plaintiff cannot respond, it may unfairly impair the strength of his claim. That said, if the defense is deemed to be valid, it is very rarely rejected.

In short, הרחבת חזית basically says that, at summation, the plaintiff’s counsel cannot introduce new allegations, charges, arguments of case law (Smith vs. Jones or State of Virginia vs. Acme Co.) or pieces of evidence that were not introduced in the initial claim and discovery.

Lawyers try doing this all the time. Sometimes the opposition objects and sometimes they do not. When they do, it is the judge’s job to decide if this constitutes  הרחבת חזית and to invalidate it if it does.

But what happens when the judge herself, in her ruling, brings up sub-allegations, points of evidence, or case law, that were not presented to the defendant by the plaintiff during the litigation, and uses it to justify their ruling?

This is exactly what Judge Marilyn Milian of the People’s Court did when she contacted the wig-maker privately, obtained what she thought was accurate information, and ruled against the plaintiffs without presenting her findings to them for a response.

Is this legal?

The truth is that judges all over have very broad powers and they are not bound by the same rules that apply to the litigants. Of course, if a litigant feels that the judge overstepped her boundaries and based their ruling on flawed material there are grounds for appeal. But we know that appeals are prohibitively expensive and are always trying to undo what is already done.

So, all this may be legal. But is it moral or ethical?

Certainly not. This is the message of the famous expression in Pirkei Avos: אל תעש עצמך כעורכי הדיינים. But, more than this, it invariably means that the judge is biased. The judge is taking sides and is looking for ways to help one side against the other.

A judge is not meant to be a lawyer. The problem is that almost all judges were lawyers before they became judges. It’s very hard for most of them to get it out of their systems.

Sadly, I have seen this apply in Beis Din as well. This is why it needs to be spelled out in Pirkei Avos.

When a judge takes sides and acts like a lawyer, the judges themselves need to be judged. It’s a shame they happen to be immune.

More on this in upcoming posts.

אוי לדור ששפטו את שופטיהם ואוי לדור ששופטיו צריכין להשפט