Now, the most significant demonstration of naivete on my part (call it stupidity, if you'd like), was my failure to realize the full portent of this line in the shtar birurin:
Al ha'tzedadim l'hitztayed im kol hochochusaihem u'mismochosaihem v'eideihem kdei she'Beis HaDin lo yitztareich l'diyunim nosafim.
Sounds innocent enough? We ask for the BD's convenience that everyone bring all matter of evidence that they know of the first time around so we don't have to reconvene, right?
What it means is that unless the Beis Din decides for some overriding reason to admit it later on, any evidence, including Halachic reasoning, presented after the Beis Din's one and only sitting, was inadmissible.
I'm not sure I can describe the impact this approach has on a case.
The "dayan" of the nit'anim understood and implemented it thus:
This was a case of ha'motzi mei'chaveiro alav ha'ra'ayah. The to'ein had several claims, but let us focus on the major one. The to'ein had been a Rebbe for many years in a yeshiva. Several years ago, the yeshiva decided to "close", and terminated several Rabbeim. However, it still exists as a corporate entity with assets, retains (at least one) former Rebbe as an employee, and functions as a Shul and Beis Medrash. If you call the institution's phone number, you will still be answered: "Yeshivas X." The to'ein asked for the customary chodesh l'shanah severance that is paid upon termination. [Rabbi Michael Broyde from Atlanta has a frequently cited essay demonstrating that the minhag in the American chinuch system is to pay severance of chodesh l'shanah, and Torah U'Mesorah guidelines for its schools incorporate this standard.] Without getting into details, the yeshiva refused, on two grounds:
1. It had not itself established a minhag to pay severance.
2. It had not terminated the Rebbe, but had closed, and was therefore not required to pay severance.
In a future post I will lay out my position on a psak in this matter, and my reasoning, but the "dayan" of the nit'anim took a very simple and straightforward position:
This is a case of ha'motzi mei'chaveiro alav ha'ra'ayah. Unless the to'ein produces at the Din Torah itself (as per the clause above) verified and documented precedents of severance being paid in the makom in which this yeshiva is located and verified and documented precedents (again, at the Din Torah itself) of severance being paid in a case in which a yeshiva closed, he loses. Period. No further research or reasoning necessary.
In short, the burden of birur ha'emes and paskening is lifted from the shoulders of the "dayanim" and placed upon the to'ein. Any concession on the part of the "dayanim" to engage in independent research and analysis is purely their own condescenion, not a requirement of due diligence.