Solomonic Procedure: A Suggestion for Reform of Litigation Procedure
Suggestion: Judges should be required to repeat each litigant’s facts and arguments before giving a decision.
It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Joint Anti-Fascist Refugee Committee v. McGrath (1951) 341 U.S. 123,179
Most educated people know of the scriptural incident where King Solomon judges which of two women a baby belongs to – by threatening to cut the baby in two. A full account of the incident appears below.
Although the incident reveals King Solomon’s wisdom and insight into human nature – there are also improvements in our rules of court procedure which we at Lawreform Network believe should be learned out from the the incident.
First of all, there were no lawyers representing the litigants. Consider the following verse:
“And the king said, Fetch me a sword . . .”.
Some say that he wished to see which of the two women possessed more compassion for the child. The true mother would, according to the laws of nature, show her motherly love for her child and not allow it to be killed. Another view is that if it were true that this woman had lain on her child, thereby killing it, this would produce and develop a nature of lust for blood in her. She would possess a cruel desire to see another life snuffed out. Solomon, therefore, requested a sword. He waited to see the response of each, which was not long in coming, and proved his correctness [Abarbanel]. In either case, it is easy to see how the presence of shrewd lawyers advising their respective clients what to say and what not to say, would have messed up the situation for King Solomon.
Secondly, note that the litigants repeat their arguments.
“Thus they spoke before the king . . .”.
As a matter of procedure, it was customary that the very same arguments would be repeated, occasionally with more details and explanations, in order to make certain that the court has not misunderstood their position [Redak]. Compare this with the secular courts today where the judges insist on brevity and conciseness. This penny wise, pound foolish approach where the judges don’t fully understand the arguments of the litigants actually results in longer litigations, long appeals, and perverted and corrupted judgments.
And thirdly, King Solomon repeats the assertions of each litigant:
“And the king said, ‘This one says, . . . and the other says . . . ..'”
Note that King Solomon did not add anything to the arguments already presented. From this, the redactors of Jewish Law conclude that the judge must repeat the claims of both litigants in order to be certain that he has understood them correctly (Devorim Raba 5:6).
How many appeals could have been avoided and how many perversions and corruptions of justice could have been avoided if the secular courts would adapt this simple rule requiring the judge in every case to simply restate the positions of each litigant before making a decision!
Here is the full account of the incident:
“Then came two women, harlots, to the king, and stood before him. And the one woman said, ‘Oh, my lord, I and this woman dwell in one house; and I gave birth to a child with her in the house. And it came to pass the third day after I had given birth, that this woman gave birth also; and we (were) together, (there was) no stranger with us in the house, besides us two in the house. And this woman’s son died at night; because she had lain on him. And she arose in the middle of the night and took my son from beside me, while your handmaid slept, and laid him in her bosom, and laid her dead son in my bosom. And I rose in the morning to nurse my son, and behold he was dead, but I looked closely at him in the morning, and behold, it was not my son whom I had borne.’. And the other woman said, ‘Not so, the living (is) my son, and the dead (is) your son,’ and this one said, ‘Not so, the dead (is) your son, and the living is (my) son.’ Thus they spoke before the king. And the king said, ‘This one says, “This (is) my sone that lives, and your son (is) the dead, and the other says “Not so, your son (is) the dead, and my son (is) the living.”‘ And the king said, ‘Fetch me a sword.’ And they brought a sword before the king. And the king said, ‘Divide the living child in two, and give half to the one, and half to the other.’ And the woman whose son (was) the live one, said to the king, for her compassion was aroused for her son, and she said, ‘O my lord, give her the living child, and by no means slay him.’ But the other said, ‘Let it be neither mine nor yours, divide (it).’ And the king answered and said, ‘Give her the living child, and by no means slay him; she (is) his mother.’ And all Israel heard of the judgment which the king had judged; and they feared the king; for they saw that the wisdom (was) in him to do judgment.” (1 Kings 3:16-28).
Reply from the old Law Reform Message Board appears below:
I agree totally with the idea that judges should have to repeat, on the record, all facts and legal arguments advanced by both sides, and then specfically state how they are treating them, “The plaintiff claims X is what happened. I do not believe that, I believe it was Y, and accept that defendants legal argument that this leaves him not liable” etc, etc.
If the courts really wanted to serve the public, they would require all litigants, once a lawsuit was filed, to file a complete response immediately, with no evasions, so for example, if I sue some guy for hitting my car, the guy has to immediately admit the facts. Most citizens do not realize how many months of pure delay and expense are built into the system which requires taking depositions, to get sworn statements from litiganst, when the facts are well known to both. All that does is give the lawyers a way to make money.
Another thing. After the lawsuit has been responded to. Both parties should be compelled to appear before a judge, in person, not just by sending their lawyers, and immediately answer, under oath, all the questions which are relevant to deciding liability. Not waste months, or even years, and many thousands of dollars, even tens of thousands of dollars, dancing around with the facts. Just go to the judge, get questioned on all relevant facts, (Judtge to Plaintiff:”Mr Smith, is it true you hit the defendant’s car at the corner of 12 th and Vine of April 1, 2000? Were you speeding? Did you run the light?” etc, etc and “Mr Jones, is it true you really have constant pain since the accident? And that you can not work and can not lift anything over 20 lbs?” etc. etc.
If any of the testimony was later proven false, then the lying party would become liable to the other for big money.
This would cut through so much BS. But the current system is there to serve the lawyers, and the judges, who were lawyers first before they were judges, who have friends who are mostly lawyers, and depend on lawyers for campaign money, etc, will not allow the system to be reformed. (it’s not a matter of the judges not taking action to reform the system. Plenty of private groups and individuals have been trying to do that. The judges simply don’t allow it to happen.)