This week we will begin our discussion of the place lawyers have in contemporary Batei Din. Although rabbinic lawyers or pleaders (טוענים) are present during many contemporary Dinei Torah, this was not always the case. we will try to outline the basic Halachic approaches to having טוענים representing Baalei Din in Beit Din.
Introduction - Torah Temima
The Torah (Shemot 22:8) tells us of when certain monetary disputes arise - אל האלוהים יבא דבר שניהם, "that the litigants should speak to the Dayanim." The Mechilta commenting on this Pasuk adds that this Pasuk teaches us that the Batei Din should not permit סניגורין (defense attorneys) to appear in Beit Din. The Torah Temima explains this comment of the Mechilta as follows:
...It appears that the Mechilta is teaching that the Baalei Din should not be presenting their case to the Dayanim through טוענים. Rather, the Dayanim must hear testimony directly from the mouths of the litigants, as the Pasuk states, "the words of both parties should come before the Dayanim." However, when טוענים are employed, the words of the litigants reach the ears of the טוענים and not the Dayanim. The Mechilta also precludes attorneys who try to convince the Dayanim the correctness of their client's perspective, as is done in the non-Jewish courts. The reason for this is that the majority of these טוענים are "hired guns" whose expertise is finding clever deceitful means of confusing the Dayanim to rule in favor of their client. Therefore, the Torah sought to eliminate this problem by not permitting טוענים to appear in court; rather, the litigants should plead their case directly to the Dayanim.
It should be noted that the author of the Torah Temima, Rav Baruch Epstein, did not serve as a professional rabbi. Rather, he earned his living as a banker. Needless to say, Rav Epstein was not sheltered from the roughness of the "real world." (see Encyclopedia Judaica 6:528)
Halachic Support for the Torah Temima's Explanation
There is much Halachic support for Rav Epstein's emphatic assertion that the Torah wishes the Dayanim to hear the litigant's claims directly. For example, the Halacha (Shavuot 13a and Shulchan Aruch C.M. 71:5) forbids one Baal Din to present his case to the Dayanim if the opposing Baal Din is not present. The סמ"ע explains that if the opposing litigant is not present, he will not be ashamed to lie. Similarly, one will not be embarrassed to lie to his טוען, and the טוען will subsequently not be ashamed to present a false case.
In addition, the Halacha (Shulchan Aruch C.M. 71:6) forbids a translator to be present during a Beit Din hearing (the Halacha encourages Dayanim to be multilingual - Rav Ezra Basri of the Jerusalem District Beit Din commented to me that a Dayan today needs to be fluent in English, Russian, French, and Spanish [besides Hebrew, of course]). The Pitchei Teshuva (C.M. 71:21) writes that translators are not acceptable in Beit Din, even if both parties have translators. The reason given is that when the Dayan hears the testimony directly from the witnesses, the more likely he will be able to clarify and discover the truth.
This is the reason why the Shulchan Aruch (C.M. 421) requires the litigants to appear in court. Only Torah scholars and "dignified women" are given the choice to decline to appear in Beit Din by claiming it is beneath their dignity to do so. In these two instances, a court agent (שליח בית דין) comes to the Talmid Chacham or woman and transcribes her claims and subsequently presents the transcribed claims to the Dayanim.
Preserving the Innocence of the Litigants
Another reason for discouraging the presence of lawyers in Beit Din is the desire and need to preserve the "innocence" of the Baalei Din. For example, the Rema (C.M. 71:5) rules that a Torah scholar should not tell or even write to one of the litigants telling him whether his position is correct or not שמא מתוך דבריו ילמדו לשקר, maybe the litigant will derive from his writings lesson on how to fraudently win his Din Torah.
The following two cases vividly illustrate this point. The first part of the Mishna in Baba Metzia speaks of two different cases of a dispute regarding the ownership of an item. In the first case, both litigants claim that the item belongs entirely to him. The Halacha is that after the litigants each take a rabbinically mandated oath, each party receives half of the disputed item. The second case is that one party claims to own the entire object and opposing Baal Din claims that he owns half of the item. In this case, after taking an oath to buttress their arguments, the one claiming the entire object receives three fourths of the object and the other party receives only a quarter of the disputed item.
If one were to know the outcome of the Din, then in the second case, one might be very tempted to claim that the entire object belongs to him, because that claim will entitle him to what he believes he truly deserves, half of the disputed item (see Tosafot s.v. וזה). In fact, the entire Halachic institution of מיגו would fall to the wayside if every litigant was advised regarding the claim they wish to present in Beit Din (מיגו literally refers to the reason that one should believe a certain claim of a litigant, because if he truly wishes to lie, he would have made a stronger claim - a lawyer may advise a client to make a less outrageous claim of which he will be believed by the Dayanim because "he had a מיגו").
Another illustration is a case I witnessed in the Jerusalem District Beit Din in May 4991. A couple who were not represented by counsel appeared in Beit Din regarding a marital dispute. The wife pleaded that the husband be ordered to give a Get on the grounds that he physically abused her. After she made her claim, the Beit Din asked the husband for his response to her claims. He answered that he beat her but he thought there was cause to do so; she had a tendency to fall asleep when he delivered a D'var Torah at the family's Friday night table. Immediately, Rav Shlomo Fisher (an eminent Dayan who is Rosh Yeshivat Itri) berated the husband and sternly warned him that he must give his wife a Get or be faced with a sentence of jail from the Beit Din (see Shulchan Aruch Even Haezer 451:3).
This case was resolved extremely expediently for the most part due to the absence of an attorney. The husband presumably responded that he engaged in spousal abuse because he though he had the "right" to do so under the circumstances. An attorney or טוען most likely would not have permitted him to make such an admission.
It is for this reason that the Mishna in Pirkei Avot (1:8) teaches אל תעש עצמך כעורכי הדיינים, that one should not act as an attorney. Both Rashi and Rambam explain that this refers to someone who coaches a litigant to plead in order to emerge victorious from the Din Torah. This interferes with the proper functioning of a Beit Din which needs uncoached and honest presentations from the Baal Din to the Dayanim.
Next week, we will, God willing, delve further into the question of the role of attorneys in Beit Din.