Should we become Judge Judy?
Chapter 1, Mishnah 8
יְהוּדָה בֶן טַבַּאי וְשִׁמְעוֹן בֶּן שָׁטָח קִבְּלוּ מֵהֶם. יְהוּדָה בֶן טַבַּאי אוֹמֵר, אַל תַּעַשׂ עַצְמְךָ כְעוֹרְכֵי הַדַּיָּנִין. וּכְשֶׁיִּהְיוּ בַעֲלֵי דִינִין עוֹמְדִים לְפָנֶיךָ, יִהְיוּ בְעֵינֶיךָ כִרְשָׁעִים. וּכְשֶׁנִּפְטָרִים מִלְּפָנֶיךָ, יִהְיוּ בְעֵינֶיךָ כְזַכָּאִין, כְּשֶׁקִּבְּלוּ עֲלֵיהֶם אֶת הַדִּין:
Judah ben Tabbai and Shimon ben Shetach received [the oral tradition] from them. Judah ben Tabbai said: do not [as a judge] play the part of an advocate; and when the litigants are standing before you, look upon them as if they were [both] guilty; and when they leave your presence, look upon them as if they were [both] innocent, when they have accepted the judgement.
L: How about we begin by reading the first few words of commentary from Irving Bunim.
“The term used in the Mishnah is or’che ha-dayyanim. In modern Hebrew, orech din means literally “one who arranges the argument before the judge”; it generally denotes an attorney or lawyer. In this sense, the statement would be an exhortation to judges not to inadvertently act as lawyers for either of the litigants; not to assist them even unwittingly by the type of questioning which they employ or in the reformulation of their claims."
Isn’t that what you want from any judge – this impartiality?
H: Right.
L: Again, Howie, if our grandchildren were in front of us what would we want them to hear from us about this Mishnah?
H: We would tell them that we all need to be just.
L: What does “just” mean here?
H: That we want them to do the right thing on behalf of the people who are the recipients of this particular judgement.
L: So, we are talking about either the plaintiff or the defendant. To be fair to both. This type of situation probably comes up more than we would like to believe – even outside a courtroom.
For instance, we live in a very polarized world today, different political camps, different religious and ad social camps. Do we all become de facto judges in this world…do we tend to prejudge on people and the issues they may represent?
H: Yes, we all seem to judge something, some issue. We have to be fair and render an opinion, but not one that necessarily looks good to the world outside.
L: Whenever I watch network TV news, it is clear to me the broadcasters are extremely biased in their reporting – in effect, in their judgement of others.
H: Indeed, they are very biased, depending on whether or not they are a Democratic or a Republican. That’s correct.
L: If you would take the warning from this Mishnah, I would imagine you will find being a news anchor a very difficult position. This has become a discussion than just that of how to run a courtroom and manage litigants. What would we tell our kids about the world outside…
H: The world outside is a crazy place to be and is often not just. You have to try, have the discipline to see that your behavior is proper.
L: Your behavior could be “proper,” as you say but someone takes you to court anyway. The dayan, the judge is facing you.
H: You can only do the best you can and present the strongest case possible, in an honest and forthright way. That’s really all you can do.
L: We’ve veered onto the courtroom floor. But let’s get back to the judge, the person sitting on the bench looking at the litigants. How do you regard both parties as “innocents,” as the Mishnah demands? What kinds of questions can you ask each party that does not show bias on your part and that moves the trial forward?
H: It’s up to the judge to get to the truth behind the case. He or she needs to uncover the true story from both sides. The judge has a moral obligation that the litigants need to stop fighting with one another. That’s number one. And, number two, the judge must point out where they are wrong, so they won’t repeat the behavior that led to this moment.
L: I’m not so sure people will respond well to this kind of “moral obligation.” By saying “you’re wrong,” that simply sends me into a corner somewhere, rather than reconciling.
H: Yes, that’s true.
L: How do you make someone aware they are doing something wrong and own up to their mistake?
H: Ah, I’m not sure I have the answer to that.
L: If you can’t get adults to acknowledge their faults – at least right away – what can you do to set them on the path towards acknowledgement?
H: You need to try to get them to be more objective about their viewpoint.
L: What gives you objectivity? Especially, when you are in the middle of a battle? What can you do?
H: I am not sure. What do you suggest?
L: Maybe asking each of the parties to take a step back. Let them cool off, as they often do during labor negotiations.
H: Yes, all well and good. But how do they get them to do that? Maybe if they cool down a bit and bring in other people, other opinions. And for children to bring in their mothers or fathers, or brothers or sisters – just get another viewpoint.
L: Hmmm…a good thought. Because a parent may step in and suggest to you, “Have you ever thought about the other person, and what they were thinking?”