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The purpose of this paper is to provide litigation lawyers and other interested parties with insight into the specific needs of Orthodox Jewish clients. It is important in developing a litigation strategy for those clients to understand how some of the tenets of their faith impact on the litigation of disputes and the financial and personal risk that the clients may be placed in as a result.
Equally important, there are different Jewish courts in different jurisdictions. These different courts may have Dayanim/Judges who may be prone to interpret Jewish law differently and one Jewish court may be more likely to do so in a way that favours one litigant over the other.
Advising clients about choosing the most advantageous forum for their specific case is not unusual. In the course of some civil litigation disputes, there may be more than one province or country that has jurisdiction to adjudicate a dispute. In these circumstances, lawyers are often called upon to address whether it is prudent to litigate in one jurisdiction over the other and often seek a venue whose laws favour their particular client. The dilemma for the Orthodox Jew is that, regardless of the tactical advantages of a particular forum, he or she is bound by his or her faith to litigate in accordance with Halacha. The authors, in this paper, will endeavour to present a primer on how to navigate the Halachic process to assist the client in having his or her dispute determined before their preferred adjudicator. The last part of the paper includes appendices which hopefully will provide useful background to those grappling with these issues. The first appendix reviews how Orthodox Judaism understands the evolution of its legal system and the second appendix provides cases where Orthodox Jews have litigated their disputes in civil court despite the aforementioned prohibition and their rationale for so doing.
In advising a client it is not enough to be able to recognize where they would receive a more favourable hearing. It is important to understand the Halachic process in order to help this type of client who wishes to avoid criticism by their coreligionists and/or sanctions by their community and still have their dispute resolved in the forum most favourable to them. This is nothing new for lawyers who are often called upon to deal with the complicated issue of forum non conveniens, comity and private international law and argue for the most favourable forum for their client.8 In this context however, it is fundamentally important to understand the concerns and rights of a litigant under Halacha.
Finally, the Orthodox Jewish client may wish to comply with Halacha and still have his or her matter adjudicated in civil court. To accomplish this goal one must become familiar with the rules of procedure before the Beis Din,9 the rights of the parties to ask the Beis Din to ask for a siruv and or a heter arkaos. There are also instances where Jewish law recognizes that the plaintiff may proceed to civil court and need not go to a Beis Din.
In Halacha the plaintiff is referred to as the toveah and the defendant as the nitvah. In such cases the toveah would approach a Beis Din and request their assistance in bringing the dispute before them. In turn the Beis Din would send a hazmanah to the nitvah to attend before the court to adjudicate the dispute. The literal translation of the word hazmanah is invitation. However, in this context it is a summons to appear before the Jewish court. A refusal to appear before the Beis Din may have consequences for the religious Jewish client.
A litigant who refuses to appear before a Beis Din in response to a siruv may be precluded from participating in communal services. For example, he may not serve as cantor on Jewish holidays.19 In one recent case, the parties were members of the Orthodox Jewish faith and the plaintiff received a hazmanah from the Vaad Harabonim Beis Din.20 When he later appealed the decision of the Beis Din to a civil court, the plaintiff testified that he agreed to go before the Beis Din only under duress. Specifically, he feared that if he did not respond to the Beis Din it would issue a siruv resulting in severe consequences including his being ostracized or ex-communicated from the community. Similarly, in Cawthorpe v. Cawthorpe,21 a case involving a married couple who agreed to arbitrate various issues arising from their divorce before a Beis Din, when appealing the decision of the Beis Din, the husband claimed that he was pressured to appear before the Beis Din out of fear of being shunned from his religious community. In particular, he claimed to have been terminated from his position as a school teacher in a Jewish school because of his reluctance to appear before the rabbinical court. Undoubtedly, for people whose livelihood or social interaction centres around the Orthodox Jewish community, the prospect of being shunned has to be taken into account when developing a litigation strategy. Otherwise, any success may prove to be a Pyrrhic victory.
When a corporation is involved in a dispute that may lead to civil litigation, it may be essential to determine whether the corporation or its shareholders are the real parties. For example, Jewish law does not ordinarily allow one Jew to sue another in a civil court, unless the plaintiff has first obtained express permission to do so from a rabbinical court. If, however, a corporation is considered an independent legal entity, Jewish law may allow the corporation to sue or be sued in a civil court. Similarly, although Jewish law does not allow one Jew to recover from another for certain types of injuries, it may permit such recovery from an independent corporate entity.
Accordingly, when the Orthodox Jewish client seeks legal advice and expresses concern that he or she may have an obligation to proceed before a Beis Din, the lawyer should discuss the ownership structure of the parties with the client. Jewish law may not apply to certain corporations and there might not be an obligation to proceed through the religious Jewish court system. This is not to suggest that the lawyer interviewing his or her client, relying on this article, should tell his client that definitively he or she need not worry about facing recriminations for not proceeding before the religious court. Rather, if the client is concerned about any perceived obligation to adjudicate the dispute before a religious court it is incumbent on the lawyer to raise this issue and suggest that the client seek Rabbinic guidance on whether the corporation involved is obligated to appear before the religious Jewish court.
It is not hard to imagine a circumstance where a person summoned before a Beis Din refuses to attend either because they do not wish to adjudicate the dispute in a rabbinical court or believe that they would be at a disadvantage before the Beis Din as opposed to civil court. In such a situation, the Shulchan Aruch permits the person bringing the dispute to resort to civil court.29
The process for gaining approval from the Beis Din under this exception is as follows: the plaintiff opens a file at Beis Din. The Beis Din then issues a hazmanah to the defendant. If the defendant does not respond to the initial hazmanah, the Beis Din may issue an additional hazmanah. If the defendant fails to respond to the subsequent hazmanah, the Beis Din can elect to issue a heter arkaos. The Beis Din can grant a plaintiff permission to proceed in civil court if the defendant has been properly notified and fails to respond to the hazmanah within thirty days.30 However, it is important to remember that a heter arkaos is not automatically issued by the Beis Din. The plaintiff must request that the Beis Din issue it and follow up to obtain it before proceeding to civil court.
Where an observant defendant is summoned to appear before a civil court by a fellow Jew, there are differing opinions on whether the defendant must first receive permission from a Beis Din to defend themselves in civil court.31 Ultimately, the defendant is entitled to defend themselves in civil court, if required.
According to Jewish law the defendant/nitvah must appear before a Beis Din once he or she receives a hazmanah, but the nitvah can choose to have the dispute adjudicated by an alternative Beis Din recognized by the Beis Din who sent the hazmanah.33 That is what happened in Gerstel et al. v Kelman:
Chances are that the plaintiff has chosen the specific Beis Din that originated the process because he/she believes that this particular Jewish court will favour him/her or at least treat him/her fairly. When the nitvah chooses another Beis Din the toveah may not agree to go there. In such a scenario the nitvah can invoke zabla.
Rav Moshe Feinstein35 says that all Batei Din (the plural of Beis Din) in New York are regarded as ad hoc.36 If one accepts that to be true of New York it is no less so for the religious Jewish courts located in Toronto. The Rema37 says that if the Beis Din who issued the siruv is ad hoc, then the nitvah has a right to demand zabla. That process involves each party nominating one judge, and the two judges together with the litigants select a third.38 This process may provide some solace to a client that he will have a favourable forum to hear his /her grievances. In addition, some see the process as beneficial because the litigants will have confidence in the process given that they chose the judges and each of the judges will feel the onus of fully evaluating the arguments of the party who selected him.39
However, others object to the zabla process seeing it at best as an inferior adjudication process and at worst a ruse to rig the adjudication. Imagine the defendant choosing a Rabbi/Dayanim who the plaintiff feels is biased against him. The defendant may never agree to such a person on the panel. Inevitably, when one party choses a panellist unfavourable to the other, the zabla process will fail and the disgruntled party will return to the Beis Din and seek a heter arkaos permitting the matter to go before the civil courts. The following is an excerpt from remarks made by Rabbi Yona Reiss40 about the zabla process:
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