Playing at being lawyers -- or just being helpful?

Yehudah ben Tabbai (Avot 1:8) teaches a rule for dayanim, trial judges in Jewish courts, that at first seems superfluous. They must be above the dispute and not participate in it as if they were engaged as counsel:

אַל תַּֽעַשׂ עַצְמְךָ כְּעוֹרְכֵי הַדַּיָּנִין, וּכְשֶׁיִּהְיוּ בַּעֲלֵי הַדִּין עוֹמְדִים לְפָנֶֽיךָ, יִהְיוּ בְעֵינֶֽיךָ כִּרְשָׁעִים, וּכְשֶׁנִּפְטָרִים מִלְּפָנֶֽיךָ יִהְיוּ בְעֵינֶֽיךָ כְּזַכָּאִין, כְּשֶׁקִּבְּלוּ עֲלֵיהֶם אֶת הַדִּין

[When sitting in judgement], do not act as a lawyer. When the litigants stand before you, consider them both guilty; and when they leave your courtroom, having accepted the judgement, regard them as equally righteous.

It is a matter of common knowledge that the job of judges is to hear disputes and judge them, while lawyers are engaged to help their clients by researching the relevant laws, collecting evidence, constructing favourable arguments, and then by putting the evidence and arguments before the judges in a manner that is most likely to be accepted by them.

The Torah makes it clear that the judge must be impartial and should not side with any party to a dispute. The dayanim are forbidden to let themselves be influenced by bribes or partisan considerations because they are charged with the responsibility of reaching a just decision (Devarim 16:18-20). The Vilna Gaon’s commentary on this mishnah goes further, supporting it with a verse from the prophets (כִּי כַפֵּיכֶם נְגֹאֲלוּ בַדָּם, וְאֶצְבְּעוֹתֵיכֶם בֶּעָוֺן; שִׂפְתוֹתֵיכֶם, דִּבְּרוּ-שֶׁקֶר--לְשׁוֹנְכֶם עַוְלָה תֶהְגֶּה, “For your hands are defiled with blood, and your fingers with iniquity; your lips have spoken lies, your tongue mutters wickedness”, Isaiah 59:3). According to Rashi (Shabbat 139a) this verse applies to judges teaching the litigants how to argue their cases.

Does all of this mean that dayanim may not intervene on behalf of a litigant? One might think so—but there is a contrary opinion too.

R’ Ovadyah Hedaya (Seh leBet Avot) cites a little-known work of halachah, the Shulchan haTahor of R. Yitzchak Ayzik Yehudah Yechiel Safrin of Komarno. This work, which seeks to reflect Jewish law as viewed in light of the mysticism of Chassidut and Kabbalah, postulates that a dayan may come to the rescue, as it were, of a litigant whose case has some merit but who is so flustered by the heat of the moment that he is incapable of expressing himself. This sort of intervention is mandated by the principle of petach picha le’ilem (“open your mouth for the one who is dumb”).

Clearly this principle has its limitations and cannot be invoked in order for a dayan to be dan lekaf zechut on behalf of one adversary against another. This is why Yehudah ben Tabbai adds that, before a bet din (Jewish court) gives its decision and the litigants accept it, a dayan must regard them both as being in the wrong.

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