We come to chapter 1 of Maseches Avos, mishnah 8, where we meet Yehudah ben Tabbai and Shimon ben Shatach - the third of the five pairs. These men lived in an extremely turbulent period, largely during the days of Alexander Yannai.
The Historical Background:
Yannai the king was, in all likelihood, the worst of the Hasmonean kings. He killed the Perushim, and because of this Yehudah ben Tabbai was forced to flee to Alexandria in Egypt and live there. When he died, in the year seventy six before the common era, his wife Queen Shlomtzion, the sister of Shimon ben Shatach, came to power. She reigned for about nine years, allowed the Perushim to return, and accomplished great things - and we will expand on that in the next mishnah.
The Gemara in Maseches Chagigah records a dispute as to whether Yehudah ben Tabbai was the Nasi and Shimon ben Shatach the head of the court, or the reverse. Our mishnah takes the position that Yehudah ben Tabbai was the Nasi. His words here are addressed to judges, to those who sit in judgment in a Jewish court, and therefore their direct application to us is limited.
"Al ta'as atzmecha ke'orchei hadayanim":
We learned: "Yehudah ben Tabbai v'Shimon ben Shatach kiblu mehem. Yehudah ben Tabbai omer: al ta'as atzmecha ke'orchei hadayanim" - Yehudah ben Tabbai and Shimon ben Shatach received from them. Yehudah ben Tabbai says: do not make yourself like those who arrange the case for the judges.
According to the version before us - "orchei hadayanim." "Orech" comes from the root meaning to arrange, as in "shulchan orech" at the Pesach seder and as in "Shulchan Aruch." The orchei hadayanim are those who arrange the case and organize the presentation of the litigants' claims for them. From here comes the modern Hebrew term "orech din" for a lawyer, since this is precisely his job: to help his client win the case.
In the times when the court operated there were no lawyers at all, so that is not the meaning here. The intent is that the judge himself may not coach the witnesses or the litigants as to how to present their claim in the best possible way. The Torah's system of justice is not an adversarial system: a court of three asks all the questions, probes to the depth of the matter, draws out the facts from both litigants and from the witnesses, and rules accordingly.
The mishnah is not speaking about teaching a person how to lie in order to win the case - that is forbidden from the outset. It is adding good counsel: even within the bounds of what is legitimate, a judge should not help one side present its claim, even if in truth that side deserves to win. The thing looks improper and bad, and as a result people will learn to behave dishonestly.
A Second Reading - "Ke'archei hadayanim":
Some read the wording of the mishnah differently: not "orchei" from the root meaning to arrange, but "archei," from the word "arka'os" - the courts of the gentiles. The word is close to the English prefix arch (archduke, archangel, archetype), which means the chief, the primary, the ruling and the most important.
Yehudah ben Tabbai and Shimon ben Shatach lived in a period in which the Jewish world was run by Jews who were Jews in name only, such as Yochanan Hyrcanus, who were complete Hellenists. One can say with confidence that Yochanan Hyrcanus had far more in common with, and saw eye to eye far more with, Antiochus than with his own great grandfather Shimon and with Yehudah the Maccabee. The Hellenists turned the state into a Greek state in every respect, with a Greek-Roman legal system of its own. Hence the counsel: a judge should not make himself like the archei hadayanim, like the courts of the gentiles and their judges, who conduct themselves in a manner that is not the way of the Torah.
Two explanations in the Bartenura:
The judge who sits alone: even though there are circumstances in which a judge may sit in judgment by himself instead of a court of three, he should not conduct himself that way, in the manner of the other nations; rather, he should set up a court of three.
The student: a student should not imagine that he is the greatest of all, like a chief judge who knows better than his teacher. On the contrary, he must humble himself and try to understand what his teacher is getting at, and not hold himself to be the one with the most knowledge of all.
"Yihyu be'einecha kirsha'im":
The Mishnah continues: "Ukesheyihyu ba'alei dinin omdim lefanecha, yihyu be'einecha kirsha'im" - when the litigants stand before you, they should be in your eyes like guilty men. This instruction seems to stand in contrast to the two preceding mishnayos. Two mishnayos ago we learned "hevei dan es kol ha'adam lechaf zechus" - judge every person favorably: when it is not known whether a person is guilty or innocent, one should assume the best about him. The previous mishnah taught that a person must protect himself and his household and stay away from people who appear to be wicked, without judging them favorably, out of a practical approach. Here we go to the other extreme: when a person serves as a judge, he must be completely skeptical and cautious, assuming that everyone is mistaken and not giving anyone the benefit of the doubt, since they do not deserve it.
A judge must be entirely indifferent to the question of which side will win. He may not have favorites, Heaven forbid, and he should not say: this man is pleasant and I know that his ways are good. Instead, he must assume that both sides are guilty, and from that starting point ask the probing questions that bring out the truth, as stated in the first part of the mishnah.
"Ucheshenifterin milfanecha yihyu be'einecha kezaka'in":
Once the litigants have departed from before him - that is, once the judge has issued his ruling, obligating or exempting, ruling in favor of the plaintiff over the defendant - he must view both sides as innocent and in the right. Even the one who was found liable, in whatever way, or who was obligated to pay and did something improper: we all make mistakes, we have all done the wrong thing, but now he is paying his debt, and that returns him to the list of the good.
This assumption is conditional, in the words of the mishnah, "keshekiblu aleihem es hadin" - once they have accepted the ruling upon themselves: that they accept the verdict and do not fight it and dig in their heels, but say to a certain degree: if this is how it has to be, so be it. From the moment they pay what they owe and carry out whatever compensation is required of them, the judge must assume that they believed their own version was the correct one and did not intend any harm by their conduct; and to the extent that they were mistaken - now, having accepted his ruling and borne its consequences, they return in his eyes to the place they deserve, to the list of the innocent, cleansed.
A separate approach - the case of one who swears:
Sometimes the court cannot obligate a person to pay because of a lack of evidence. For example, when there is only one witness: a single witness is not enough to obligate payment, but he does have the power to impose an oath - that the defendant swear that he does not owe the money or that he is clear of whatever he is being accused of. Once he has sworn, he is believed in court and he cannot be made to pay.
According to that possibility, our mishnah teaches that if a person swore that he is innocent or that he does not owe, he is to be believed and one should assume that this is indeed what he believes. One should not assume the worst about the accused merely because a single witness testifies otherwise; once he has sworn that this is the truth, one should believe that at the very least this is what he believes. And the judge should not leave the courtroom assuming that this fellow got away with what he got away with and walked out clean from a sin he holds in his hand; rather, he should assume the best about him and accept his oath at face value - that he means what he swore, and that it was the truth.