What’s a Beth Din Trial?
We mentioned arbitration last week. Like many business lawyers, we handle a lot of arbitrations in addition to trials in court. There are obvious overlaps in technique and skill set and much of what we write about here will also apply to many arbitration proceedings.
And I'd be lying if I said that I never enjoyed an arbitration. One particular benefit, if you're dealing with a panel rather than a single arbitrator, is that you can sometimes push the envelope on presentation in ways that would be hard with a single judge. Many individual judges are not shy about banning any demonstrative that doesn't fit into their narrow view of an “appropriate” visual aid. For example, I was once castigated by a judge for using what he called a “device” to mark-up exhibits in front of a jury. What was this horrible device? A wireless ELMO – essentially the same kind of overhead projector used in every school in America. But while a single judge is often quick to shut down anything fun or innovative, panels tend to give more leeway – so long as any one of the arbitrators is entertained it's awkward for the others to pull the plug. So if you’ve got some clever idea for a demonstrative that might not fly in court, arbitration may be the place to test it out.
But despite the potential for amusing hijinks that arbitration provides, we would generally prefer to resolve cases at trial, if possible, in front of a jury. While a jury is no guarantee of a perfect result – or even that the right party will win – there is a basic fairness in jury trials that no other adjudication mechanism provides. You get six to twelve strangers with no interest in the case and take your best shot to persuade them that you are right. You might end up with one (or even more than one) juror who is biased against you from the very start. But in the aggregate, you're likely to have a fair shake, provided that your case is real and the judge doesn't butcher you on the evidence.
This is not always the case with arbitration, which can take you to some strange places indeed. One particularly unusual forum with some purchase in New York is the Beth Din, [1] literally “house of judgment,” a set of courts for dispute resolution run by rabbis administering traditional Jewish law, or halakha.
How do you find yourself facing a Beth Din? Realistically, by being an Orthodox Jew who has a legal dispute with another Orthodox Jew. While plenty of Orthodox Jews are perfectly comfortable suing in a normal court – indeed you’ll encounter many excellent Orthodox lawyers, particularly in New York – there are others who hew to a traditional prohibition on Jews accusing other Jews before a secular court. This is said to have originated with prohibitions on the use of idolatrous courts during the diaspora but was later extended to all non-Jewish courts, even those run by non-idolatrous Muslims or Christians. [2]
The Beth Din process begins with a hazmana, a kind of religious summons that the plaintiff requests from the religious court. The document demands that the defendant appear at a particular time and place and sign an arbitration agreement giving the Beth Din the secular legal authority to decide the dispute. While arbitration is nominally voluntary under U.S. law, the hazmana is a religious threat – consent to arbitration or face the consequences.
What are those consequences? An excommunication decree or siruv, ordering that that the defendant is to be shunned by the community for denying the religious authority of the court. Even by the standards of contempt orders, these things can be pretty mean. For example:
To sages, heads of assemblies, elders, arbitrators, and communal leaders, may you have an abundance of peace. We inform you, regarding the man
NAME
that we banned him for sixty days because of his refusal to appear before rabbinical court, and he did not repent and did not appeal to nullify the ban. We ordered to excommunicate him at the entrance of the rabbinical court. You too, when this document of excommunication reaches you, excommunicate him and ban him every day always.
And announce of him that his bread is the bread of non-Jews, his wine is the wine of idolatrous libation, his fruits are non-tithed, and his books are books of wizardry. Uproot his Mezuzah’s and do not pray with him and do not circumcise a son of his, and do not teach his sons in the synagogues, and do not bury a corpse for him, and do not include him in a group involved in fulfilling a precept, or in the a group involved in regular activities, and rinse a cup after him, and treat him in a way of derogation and the way of non-Jews.
At first blush this looks a little insane, and it’s easy to joke about how “books of wizardry” and “wine of idolatrous libation” might sound great to many people. But these prohibition orders are no laughing matter for folks who live in the insular communities where Beth Din operate. One complication is that there is no central authority for Beth Din in the United states. Multiple organizations operate more or less independently and self-certify themselves as proper religious courts. As such, any devout defendant who receives a hazmana faces real pressure to appear before a “court” of unknown provenance that the plaintiff has personally selected.
There are some ways to avoid blatant forum shopping. Jewish scholarship recognizes the right of a defendant to pick an alternative Beth Din to hear the case, provided it is a neutral forum. Alternately, the defendant can demand zabla – a process akin to party arbitrators where each side picks a rabbinical judge and the two judges themselves select a third. This can work, but it can also lead to both Beth Din tribunals refusing to recognize the other and everyone on both sides getting excommunicated by someone.
This is sometimes the point, as some Orthodox Jews feel religiously obligated to make an attempt at the Beth Din process, but would just assume resolve matters in a normal court applying secular law, particularly on business matters. The excommunication process can give them that, as Beth Din can also provide a kind of religious dispensation to file normal lawsuits (called a heter) to plaintiffs whose defendants refuse to show up.
But imagine you accept the summons, sign the arbitration agreement and show up. What can you expect? In many cases, something that looks a lot like a normal arbitration, with three rabbinical arbitrators, or dayanim, taking testimony, reviewing documentary evidence, and rendering a verdict in a more informal manner than a traditional trial. Historically, there was no requirement that these dayanim be rabbis — this is not strictly required by halakha — but in modern times before an established Beth Din, the judges are likely to have rabbinical training. Provided that an arbitration agreement is signed – the first thing that every ADR forum makes you do – the decision rendered by the panel can then be enforced in a normal court with a very limited ability for anyone to appeal.
But as this is still a religious court, there can be some odd wrinkles. Traditionally Jewish courts did not involve lawyers, and some Beth Din have been accused of all but prohibiting them. Strictly speaking this is not allowed, at least in New York, where an arbitration is required to allow the parties counsel and is potentially unenforceable if it does not. But just like a normal court, Beth Din have ways of avoiding this restriction, such as finding that a party has waived their right to appear through counsel by showing up unrepresented to the initial appearance date.
And like secular law, Jewish law can also contains some traps for the unwary. Technically halakha prohibits Jews from charging interest to other Jews, rendering some commercial contracts illegal. There are common ways of structuring around this. For example, something called a heter iska is a joint venture designed to synthetically create the economic exposure of an interest-bearing loan. But an ordinary promissory note or informal loan taken to a Beth Din may not have this protection built in.
There is also the principle of shemitah loan amnesty – essentially a rule of jubilee that provides that all debts are cancelled every seven years. Again, there are ways to structure around this, a document called a pruzbul that can be submitted to a rabbinical court just before the amnesty date to avoid forgiving all of your debtors. But if you have an ordinary debt without the religious paperwork, it may not be in compliance with Jewish law.
There are other wrinkles too. For example, Jewish law has fairly specific rules on the formalities required to transfer real property that do not precisely line up with ordinary convention. In practice these particularities may not change much. There is a tradition under Jewish law of respecting commercial customs, and many Beth Din would be reluctant to void or radically alter an ordinary commercial agreement signed in good faith because it failed to strictly observe the proper halakha formalities. But the dayanim would certainly be within their rights to do so, and it would be difficult or impossible to later reverse such a decision in court. Indeed, the secular courts routinely enforce arbitral decisions even when they are poorly reasoned or contrary to secular law.
And this is the fundamental issue with all arbitration, whether handled by a rabbi or a retired judge. With a single (or panel of three) decision maker and no appellate review, there's no real guarantee that the decision will adhere to whatever law, be it secular or religious, that you think should apply. Beth Din courts doubtlessly offer some advantages to members of the Orthodox community. They can be faster and less expensive than ordinary courts and can conduct proceedings in Hebrew or Yiddish – no small thing for individuals who may not be able to express their case as effectively in English. And we'd certainly take a case before one if the opportunity presented itself.
But as trial lawyers, and as interesting as arbitration can be, we believe very strongly in the fact-finding value of jury trials and the legal consistency that appellate review provides.
[1] I’ve attempted to adopt the most accepted English transliterations of Hebrew words, but many have several common English spellings. For example,“Beth Din” is the most common English spelling, but “Beis Din” and “Beit Din” are also used. I also note that plural of Beth Din is usually something like “Batei Din,” but for clarity have largely disregarded this and treated it akin to a loan word (in the way that the English plural of “virus” rendered as “viruses,” not “viri” or “virii”).
[2] See Ginnine Fried, The Collision Of Church And State: A Primer To Beth Din Arbitration And The New York Secular Courts, 31 Fordham Urb. L.J. 633, 636 (2004).
