1997/5758
Although we have seen that the Halacha does not appreciate the presence of attorneys in Batei Din, lawyers have still become an integral part of Dinei Torah in many cases. In this essay we will trace this development and try to offer an explanation of this phenomenon.
The Introduction of Lawyers to Beit Din - Shulchan Aruch, Shach, and Aruch Hashulchan
The Shulchan Aruch (Choshen Mishpat 123:15 and 124:1) strictly limits when Halacha permits litigants to appoint an attorney (/&9:%) to plead their cases in Beit Din. Only the plaintiff is permitted to appoint an attorney. Moreover, the Mechaber says that this allowance applies only if the plaintiff is not present in the town in which the Din Torah takes place. Indeed, the Shach (C.M. 124:1) notes that they did not even permit the plaintiff to have a lawyer if the plaintiff was present at the Din Torah. Only Talmidei Chachamim and women have the option of choosing not to appear in court in person.
The defendant is never given the opportunity to appoint a lawyer. Since a Din Torah takes place in a Beit Din in the locale of the defendant, Halacha does not see a legitimate reason for the defendant to appoint a lawyer.
The Shach (ibid), however, notes that in his time (the seventeenth century), the practice developed that a plaintiff routinely was represented by counsel in Beit Din. The Shach explains that the plaintiff can transfer title of the money claim to the lawyer, making lawyer himself a Baal Din (litigant). This option does not exist for the defendant, so he may not appoint a lawyer.
The Aruch Hashulchan (C.M. 124:2) cites the Tumim (an eighteenth century scholar) who notes that in his time the practice was that even the defendant could appoint a lawyer to act on his behalf.
In Israel, the rabbinic courts permit the appearance of counsel (see Practices and Procedures State of Israel Rabbinic Courts, 1993 edition, pp.19-20). In the United States, Batei Din also permit the appearance of counsel. Without the presence of people acting as lawyers, a Beit Din's decision will not be honored by civil courts, even if the litigants sign a binding arbitration agreement (:)9 "*9&9*0).
Limitations on Lawyers
Despite the acceptance of lawyers in Beit Din proceedings, a fundamentally unfavorable attitude towards legal representation of litigants still persists. We will cite three examples.
First of all, the Aruch Hashulchan (ibid) writes,
If the litigants do not appear in Beit Din and the Beit Din sees that the Halacha in the particular case cannot be determined merely with the lawyers present, the Beit Din may insist that the litigants themselves appear in Beit Din.
The second example appears in the 1993 edition of The Practices and Procedures of State of Israel Rabbinic Courts of (pp.20). The rules state:
Beit Din may forbid the presence of a lawyer if it sees that the lawyer is obstructing justice, fails to adhere to Beit Din procedures, or behaves disrespectfully towards the Beit Din.
The third example also appears in The Practices and Procedures of State of Israel Rabbinic Courts (pp.22). This rule is that the litigants must plead their cases before the lawyer speaks. This way the Dayanim have the opportunity to hear from the Baalei Din first, before hearing the lawyers, who will try to put a "positive spin" on their clients' claims.
Reason for Change
There are a number of reasons for the trend to permit lawyers to appear in Beit Din. Reb Elya Lichter (a prominent Sopher who resides in the Williamsburg section of Brooklyn) told me made the following suggestion. He points out that the Shulchan Aruch (C.M. 17:9) requires the Dayanim to maintain a perilously tight balance between two competing Halachic principles. On one hand, Halacha forbids Dayanim "putting words on the mouth" of the a litigant (!- ;3: 37/+ ,3&9,* %$**1*.). On the other hand, Beit Din is charged with the mission of assisting a Baal Din who is struggling to present his claim but is unable to do so. This principle is called 5;( 5*+ -!-. (see the postscript to this essay where we provide an application of this principle that took place in the Beit Din of Elizabeth a number of months ago). Reb Elya Lichter suggests out that the presence of a lawyer eliminates the need for the Beit Din to maintain this delicate balance.
Another reason given by the Poskim is cited by Professor Nachum Rakover (who authored the classic work on "Legal Representation and Halacha," pp.343). They explain that it is especially important for an attorney to represent the sides in a domestic dispute because "often the parties become emotionally overwhelmed and are unable to respond effectively. Moreover, women sometimes feel overwhelmed in Beit Din and are not able to plead effectively." Additionally, "it is possible to make peace when objective individuals are involved who will not hurl invectives to the other side."
An even stronger point is cited by Professor Eliav Schochetman (Seder Hadin p.68). He cites a contemporary work which presents the theory (similar to that of secular law) that )&31*. should be seen as officers of the Beit Din, in assisting the Dayanim to arrive at a truthful verdict. In fact, Rav Moshe Shternburch (an important contemporary authority) writes (Teshuvot Vehanhagot no. 794):
If the rabbinic pleader )&30() acts as many attorneys do - teaching his clients to win a case despite the fraud involved - there is no greater sin. However, if the )&30 acts like a Dayan and is sincerely convinced of the correctness of his client's position... then acting as a )&30 is certainly permissible, and even constitutes a Mitzvah of helping someone retrieve a lost object, or preventing a theft.
Conclusion
Halacha certainly does not view legal representation as the ideal Beit Din situation. Nevertheless, various realities effected an adjustment in Halachic policy and for at least the past one hundred years, legal representation has been the norm in Batei Din. A compromise of sorts is that the litigants plead first and only later does counsel plead. Professor Schochetman notes that, in reality, Israeli Batei Din usually permit the )&30 to speak first. This author's experience of watching the proceedings of the Jerusalem Beit Din confirms this insight.
Postscript
An interesting example of 5;( 5*+ -!-. occurred in the Beit Din of Elizabeth (which I am a member of). A divorced couple appeared in our Beit Din for resolution of a number of outstanding monetary disputes including payment of the Ketuba. The man was represented by a )&30 and the woman was not. After the woman presented her demands, the Beit Din raised the possibility that she was entitled to, the return of the money her family paid for the couple's wedding. Rav Moshe Feinstein (Teshuvot Igrot Moshe Even Haezer 4:8) rules that since the Chatan is obligated to pay for the wedding celebration (see Ketubot 10a), the money paid by the Kalah's family for the wedding should be considered as money the wife brought into the marriage. The husband is required to pay such funds in addition to the Ketuba amount when the couple divorces (Ketubot 6:4). The Beit Din of Elizabeth discharged its obligation of 5;( 5*+ -!-., found that the woman was owed thousands of dollars which she was unaware that she was entitled to.
Our discussions of attorneys should be seen as restricted to the framework of Beit Din. Halacha advocates the inquisitionary system of justice in which a )&30 has the potential to be a hindrance to justice. However, the American judicial system follows the adversarial system of justice in which attorneys play an essential role. For a discussion of the practice of law in civil courts see Rabbi Michael Broyde's fine book, "The Pursuit of Justice and Jewish Law."