A tale of two courts

A tale of two courts

I get phone calls every day from members of the Jewish community seeking legal advice or representation in one dispute or another. Most of the time, I demur because I typically only handle business litigation, and the unsolicited callers usually have a personal grievance. But, of course, I make exceptions, and one caller seemed desperate. We met a few hours later to discuss his problem.

"I want to sue my rabbi," he explained. I asked why and braced for the explanation. "Defamation and slander," he responded and went on to explain that at a pulpit sermon the week before, the rabbi was speaking about honesty and integrity, and, as an example, excoriated those who cheat on their taxes — even to a small degree. The rabbi cited the anonymous and general case of a small-business owner who gets paid in cash but understates the income to decrease his tax burden. "He was clearly talking about me," my prospective client concluded, adding that everyone in temple now thinks he is a tax cheat. I asked him why he thought the rabbi was specifically referring to him in a congregation of hundreds, including probably dozens of small-business owners who get paid, at least in part, in cash. "Because in my case it’s true," he confided, and, then, after a pause, added, "although I have no idea how the rabbi found out."

A dozen thoughts went through my head. I did not want to bore him with a legal discourse on slander and defamation — to which the truth of the "offensive statements" is an absolute defense. I also could not bring myself to offer a psychological analysis of his guilty conscience. Nor did I think I could convince him that no reasonable person would conclude that his rabbi knew about his tax problems, let alone was referring to him when giving a sermon that virtually every rabbi in America has given at one point or another.

I must have taken a long time to respond because he interrupted my thoughts with a question I knew was coming. "So, do I have a case?" I had to prepare for a pretty substantial corporate trial, so I didn’t want to beat around the bush. I told him he did not have a case.

"Well," he continued, thinking about it, "I am not Orthodox, but would I have a better chance at a bet din?" I pictured a panel of three rabbis considering his claims before a rabbinical court.

"Not unless you can find a tribunal that supports tax fraud," I responded, but quickly regretted the words. He heard something I did not say — or mean.

"Do you have any specific tribunals in mind?"

I explained that I didn’t know of any reputable bet dins that would condone such behavior. He countered with his belief that rabbinical tribunals concern themselves exclusively with Jewish law and, because this was purely a civil issue, they would not hold his misconduct against him.

"You show me where Jewish law requires a person to pay his American taxes," he demanded.

I didn’t miss a beat: "Ask your rabbi."

The meeting ended quickly but I could not help considering his misguided impression of the bet din process. For most of my career, I was not a fan of rabbinical tribunals. The American judicial system, while hardly perfect, is a far cry from the middle ages when Jews could expect unjust and partial treatment before civil courts. I have seen just as many miscarriages of halacha before various bet dins as miscarriages of justice before civil courts. Indeed, I have found that a vast majority of claims are decided identically pursuant to halacha as civil law. No surprise there; most modern law is modeled upon halacha, in one form or another. The difference, perhaps, is in the details and procedure.

And then, I actually represented two clients in bet din proceedings and learned a thing or two. Reputable bet dins will always apply Jewish law, but where no issues of halacha are implicated, they will apply civil legal principles. Moreover, fundamental Judaic standards, such as honesty, fairness, integrity, and familial values, will always dictate the outcome. Rabbinical tribunals are not bound by the often cold and uncompromising rules of civil law. Instead, they look beyond the claims to try to achieve a just result. They don’t always succeed, but neither do civil courts. The trick, of course, is finding a legitimate, respected bet din — not always as easy as it may seem.

You also need willing litigants. I was surprised at the pressure brought to bear by several tribunals who sought to compel an unwilling party to engage in the process. Those who willingly and voluntarily participate in the bet din process are, presumably, individuals who follow and practice halachic values on a regular basis. I doubt two such adversaries would expend the time and money to arbitrate an issue with a clear and obvious halachic outcome. Like civil law, the determination often lies in the gray areas, or issues that require sage interpretation. Or, sometimes, the dispute is not over the governing halachic principles, but varying versions of the underlying facts. In either case, would you rather put your fate in the hands of three reputable and respected rabbis (with legal training), or in the hands of six random jurors of your "peers"?

I am not advocating bet dins over civil courts. The difference is subjective and almost always going to be fact-based. But for someone who has spent 99.99 percent of his legal practice successfully litigating in civil court, it’s nice to know there are options for those seeking to answer to a higher authority.

read more: