Pirkei Avot: Judges vs. Lawyers

“You do not get a second chance to make a first impression,” the saying goes. Yet do we as humans have the ability, or obligation, to change our judgment of the people around us? Can we give people a second change to make their first impression? That is what this Mishna is all about.

“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 judgment.” (Avot 1:8)

Continuing in chronological order, the Mishna now introduces us to the teachings of the third pair of Zugot–Rabbi Yehuda Ben Tabbai who was the Nasi of the Sanhedrin alongside Rabbi Shimon Ben Shetach who served as the Av Beit Din. Interestingly, the teachings of both Yehuda Ben Tabbai in our Mishna and Shimon Ben Shetach in the following Mishna are highly technical and very specific to court settings. Two stories in the Talmud shed light on why this might be. 

The first story, shared in Tractate Chagiga (16b with Sefaria translation): “Rabbi Yehuda ben Tabbai said: I swear that I will not see the consolation of Israel if I did not kill a conspiring witness to counter the views of the Sadducees, who would say: Conspiring witnesses are not executed unless the sentenced one has been executed. Their views opposed the traditional view, which maintains that conspiring witnesses are executed only if the one sentenced by their testimony has not yet been executed. Shimon ben Shataḥ said to him: I swear that I will not see the consolation of Israel if you did not shed innocent blood, as the Sages said: Conspiring witnesses are not executed unless they are both found to be conspirators; if only one is found to be a conspirator, he is not executed….The baraita further relates: All of Yehuda ben Tabbai’s days, he would prostrate himself on the grave of that executed individual’s grave to request forgiveness, and his voice was heard weeping.”

It is with this in mind that Yehuda Ben Tabbai’s statement makes the most sense. The statement “Do not [as a judge] play the part of an advocate” gains added meaning. Yehuda Ben Tabbi himself saw the catastrophic results that can come from judges overstepping their authority. Even while acting within their own capacity as judges, coming to a conclusion that is not grounded in legal evidence can lead a judge to act as a murderer. Yehuda Ben Tabbai, who spent many days weeping on the grave of someone who he had killed based on erroneous judgment, knew better than anyone how dangerous it can be for a judge to become a lawyer; he knew the danger of what it means when a judge takes hearsay, or circumstantial evidence, farther than it is permitted to go, and that it the lesson he is urging us all to note. 

This lesson the Mishna is imparting to us is not just a lesson to judges. We all act as judges at some point in our lives. We are all allowed to judge others, the question is whether we come out with a verdict or not. If we are just assessing a situation without a consequential verdict, we can make up our minds based on circumstances and context. Yet when we are making consequential judgments that will have real implications to others, we must act as judges—not as lawyers. 

This approach very much explains the next segment of the Mishna. “When the litigants are standing before you, look upon them as if they were [both] guilty”. Many commentaries wonder how to reconcile this statement with the statement made earlier on (Mishna 6): “and judge every person as meritorious.” So, how should we judge people? Do we see them as wicked people coming before us to be judged, or should we just judge everyone favorably? 

The answer to this contradiction lies in the understanding that we can assess people in many ways. One cannot compare the way we evaluate whether we should be polite to a person, make friends with them, or invite them to our home to the ways we judge people whom we consider to be business partners, roommates, spouses, and other close connections. The Mishna is teaching us that while we must always do our best to judge others favorably in a meritorious way, there are times we must be highly objective. There are times a judge cannot be like a lawyer or an advocate of one side. They must go for the absolute truth. Each and every one of us might find ourselves in this position. Teachers or parents are trying to assess exactly what happened between quarreling children, employers are contemplating whether they should hire or fire someone, and there are countless other situations where our exact judgment is needed. For good or for bad, there are times when our exacting judgment is needed. When that exact judgment is needed, make sure you are impartial. This will require us to act like a judge–not like a lawyer. It will require us to assume that each side is lying and to show no favorability. It is only once this phase is over and the critical decision is made that we can go on to see everyone as virtuous, for accepting the judgment, or for whatever virtue we may end up seeing in them. 

The Mishna goes on to speak about the need to see the parties as guilty until the judgment is over, at which point we must see them as righteous. Humans have an immense need to see people in black and white, good and evil, my side or my enemy’s side, and countless other binary names. The Mishna is teaching us that how we relate to people does not have to be set in stone, as much as it depends on the circumstances. You can be a fierce opponent of someone on the athletic playing field and their best friend once you get off that field. You can see someone in a certain way while you are a judge, but in a completely different way once you get off that judging seat. You can see a person a certain way once they have committed a crime and in a completely different way once they have gone through their process of atonement. We must all have that ability. Yesterday’s foe, can be today’s friend. Last year’s enemy can be this year’s ally and friend. Always try and put on fresh glasses, and see people in a positive way.

I remember as a child starting one year with the teacher announcing they have not read any of the reports from previous years on any of the students and feeling this is an opportunity for me to improve and start a fresh bringing. The Mishna obliges the judges to suspect people who come in front of them for judgment, but to also make sure  they drop that judgmentalness once the matter has been resolved.