Sanhedrin 065

In most common law countries a plaintiff, initially, has the right to choose where he is going to sue the alleged debtor. If the plaintiff elected to sue where the debtor resides then the debtor, for fairly obvious reasons, cannot complain (except in a situation where the two parties agreed in advance that a particular forum would have jurisdiction). However, if the plaintiff for example [wants] to sue in his own forum or some third place then the courts developed a concept of forum non conveniens (loosely meaning inconvenient forum) to protect a debtor from what could be an abusive process. Is there any halachic equivalent to protect a debtor from being sued because the forum selected is inconvenient?

I respond:

I believe that I have recently dealt with this issue, but it obviously bears repeating. Perhaps the best thing that I can do is to freely translate the relevant Sugya [discussion] in the Gemara [Sanhedrin 31b]:-

Ken's second question is

Does the mishna recognize as binding an agreement in advance (e.g. a particular rabbi or the beit din of a particular city) as to who could settle a subsequent dispute related to that agreement?

I respond with extreme brevity: yes (not the Mishnah, but later Halakhah).

Sherry Fyman has a few more questions regarding someone who has to depend on witnesses who may be disqualified:

If a person is forced to depend on witnesses who he knew may be disqualified, could he require collateral from the debtor?

I respond with extreme brevity: In most circumstances collateral may be required, regardless of the witnesses' qualifications.

If a creditor was forced to depend on witnesses who were then disqualified, was there no recourse at all or was he totally out of luck on his loan?

I respond: I think that we have already seen that it is the task of the judge to see that justice is done where there might be a conflict between the letter of the law and the requirements of justice.

If I am understanding the shiurim, we are treating these laws as basically unchanging over time. Is that correct? U.S. law – certainly commercial law – is continually changing as society changes.

I respond:

Halakhah is constantly changing and developing. That is a basic premise of Conservative Judaism. This has been less evident in the matters that we are discussing, since for centuries these laws were not fully operative. This is still the case in most parts of the Diaspora. In Israel the litigants, by common consent, have the right to have their case heard according to Torah law in a rabbinical Bet Din; the verdict may be the subject of an appeal to the [secular] Supreme Court.

David Shemano is an attorney and is generally familiar with legal procedure and evidence under United States law. He has written a very long piece, which it would be churlish of me not to quote in full, since it may be of benefit to many participants. However, let me remind everyone of something that I wrote when we first began studying this Tractate [Sanhedrin 001]:

I do not know what you know about United States law (or the common law), but your posting in Sanhedrin 063 regarding the rescission of a verdict should be compared to the doctrines of res judicata and the rules for relief from an order or judgment.

Res judicata is the doctrine which provides that a final judgment (i.e. after all appeals are exhausted) is binding on the litigants in any subsequent litigation concerned with similar facts. Res judicata is a doctrine of judicial convenience and efficiency intended to discourage relitigation of settled disputes.

The tension between the need for efficient administration of justice on the one hand and for justice to be done in a specific case on the other hand is a recognized feature of the litigation system. Many of the recent decisions of the Supreme Court concerning the death penalty have involved issues such as what occurs if a defendant misses a deadline for filing a pleading with an appellate court. Normally, certain of these deadlines are applied very strictly. When the life of the defendant is at risk, there is pressure to be more lenient. These are very controversial and divisive issues. For your information, here are the pertinent [United States] Federal Rules of Civil Procedure (which apply in federal, as opposed to state, courts) that are relevant to your posting:

Federal Rule of Civil Procedure 52; Federal Rule of Civil Procedure 59; Federal Rule of Civil Procedure 60

Rule 52 concerns findings of fact made by a judge in the absence of a jury or other rulings by a judge that are not a judgment on the ultimate issues after a trial (for instance, a ruling on pretrial motions). The Rule provides, in pertinent part:

(b) Amendment. On a party's motion filed no later than 10 days after entry of judgment, the court may amend its findings – or make additional findings – and may amend the judgment accordingly.

There are generally three grounds for amending the judgment:

(1) Correction of manifest error
(2) Newly discovered evidence
(3) Change in law

With respect to "Newly discovered evidence" – the leading treatise on the Federal Rules (the "Rashi of the Federal Rules") provides that "The movant may not introduce evidence that was available at trial but not proffered."

Rule 59 concerns motion for new trials or to amend a final judgment rendered after a trial. The Rule provides, in pertinent part:

(b) Time For Motion. Any motion for a new trial shall be filed no later than 10 days after entry of the judgment…

(e) Motion To Alter Or Amend Judgment. Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment.

Similar to Rule 52, the leading treatise provides: "The newly discovered evidence must have been discovered after judgment and the movant must have been excusably ignorant of the facts at the time of the trial despite due diligence to learn about the facts of the case."

Obviously, 10 days is a very short time frame. So, what happens if evidence is discovered more than 10 days after entry of the judgment? That question is answered by Federal Rule of Civil Procedure 60(b):

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged of a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.

According to the leading treatise, "Rule 60(b) enables a court to grant a party relief from a judgment in circumstances in which the need for truth outweighs the value of finality in litigation."

Significantly, as set forth in the Rule, there is a 1 year limit on motion to obtain relief because of newly discovered evidence, even if the evidence could not have been discovered within one year of the judgment. Furthermore, even if the newly discovered evidence is conclusive, the movant must still establish that the movant exercised due diligence during the trial and was unable to discover the evidence at that time.

In summary, Rule 60(b) attempts to find a "golden mean" between finality and justice. Finality is presumed, but exceptional circumstances are occasionally expected.

It is unclear from your posting if litigants under Jewish law could bring forth evidence within 30 days even if they knew of the evidence prior to the judgment and intentionally chose not to produce the evidence. As set forth above, under the Federal Rules, such evidence would rarely, if ever, be grounds for a new trial or amended judgment. [In the Halakhic system if this new evidence may be presumed to have been available at the time of the trial and was not produced then, it may not be produced later – SR]

Notwithstanding the differences, both the Mishnah and the Federal Rules express an adversion to what is colloquially called "sandbagging." Litigants are not entitled to withhold relevant evidence and then rely on such evidence when the trial does not go well.