Order in the Court:
The Running of Beis Din
We are in Tishrei-The month of judgement where we all are being taken to court, which is why the mazel symbol for this chodesh is that of scales. While we may not be privy to the workings of the celestial world and what goes on in shamayim when it comes to justice and appeals, we are fortunate to have our own microcosm of a court system right here on earth when it comes to our local batei din.
While Marine Park doesn’t have its own beis din, per se, I had the opportunity to speak with members of the Rabbinical Alliance of America/Igud HaRabbanim, a national rabbinic organization founded in 1942, which amongst its many services offers a local beis din so that people in the area can resolve their disputes in a halachic permissible manner.
Beis Din Background
When two Jews are having a legal dispute be it monetary, damages, inheritance, or divorce, they are expected to have their case adjudicated by beis din as opposed to the secular court system. The origins of this comes from the pasuk in Devarim (See Rashi in the beginning of Parashas Mishpatim, “Lifnahem… Vlo Lifnei Ovdei Kochavim”… one who takes his claims to court transgresses this positive commandment this was an addition by one of the many rabbis that approved the feature. You can take out if unneeded) where we are commanded to “appoint judges and officials for your tribes” (16:18). During the times of the Beis Hamikdash, there were 71 members of the Sanhedrin to rule on cases. But those 71 were only the Sanhedrin; all cases of life rulings (misah) needed a beis din of 23 for monetary claims and three judges or even one that was an expert. But a short while before the chorban the Sanhedrin left the Lishkas hagazis in the Beis Hamikdash and no longer ruled on chiyuvei misahthis line was added by one of the dayanim. After the chorban, it was not possible to continue this practice. The current Jewish legal system was born out of the Talmudic ban on Jews voluntarily presenting their cases to courts governed by idolatrous peoples. Later, this prohibition was extended to all secular courts. In addition to being a chilul Hashem, filing a suit in secular courts according to Maimonides is, “as if he had raised his hand against the Torah and angered and cursed Hashem, G-d forbid. In the Talmud, Rabbi Tarfon is quoted as saying, “In any place where you find gentile courts, even though their law is the same as the Israelite law, you must not resort to them.”
Beis din is comprised of a group of three men called dayanim (deciders) who are knowledgeable in Jewish law. Batei din are not limited to settling legal disputes, they also oversee the certification process for mashgichim, mohalim, and other communal institutions, such as Jewish burial societies, and mikvehs. In Israel they are a part of the formal legal system and must be consulted for some ritual matters (such as divorces and conversions). In America, there are some national and local batei din, such as the Beth Din of America, a New York-based beis din that is staffed by rabbis (many of whom are also lawyers) who hear cases from across the country.
Rabbi Mendy Mirocznik, is the executive vice president of the Rabbinical Alliance of America/Igud HaRabbanim, which for the past 77 years, the has been on the forefront of providing its member rabbis- numbering over 950- with professional training, job placement and continuing rabbinical professional training. Its members serve in pulpits, chaplaincy and education. But perhaps what many don’t know is that they also maintain a highly respected ecclesiastical rabbinical court that is recognized by the Chief Rabbinate of Israel. The judges are recognized as foremost scholars and leading authorities in Jewish jurisprudence. The organization has four presidents who are members: Rabbi Shea Hecht, Rabbi Chanina Elbaz, Rabbi Yaakov Dovid Spivak zt’l, (a close Talmud of Rabbi Ruderman in Yeshivah Ner Yisroel in Baltimore) and Rabbi Yaakov Shulman (who recently took over for Rabbi Spivak) . One of the presidents includes Marine Park’s own Rabbi Yaakov Klass, who also serves as the chairman. Rabbi Chaim Halberstam of Marine Park’s father-in-law, the famous Rav Yitzchak Isaac Leibes, was the longtime av beis din for the RAA/Igud.the RAA really wants to include the names of the presidents because they are “chashuveh rebbeim.”
Rav Duvid Katz, menahel of RAA/Igud took the time to explain to us the daily running of the local beis din. “We resolve disputes involving monetary, corporate, matrimonial and other matters. We treat each case with the respect and importance expected by the litigants. Decisions are carefully considered, and a decision is provided in a timely manner. This way we respect the way our past leaders conducted themselves and the beis din” remarks Rav Katz.
You Be the Judge
You may not have to endure taking the LSAT or studying years in law school to earn your Juris Doctorate, but don’t be fooled; becoming a judge is no easy feat. Rabbi Yaakov Shulman, a dayan at the RAA/Igud, explains that it takes many years of intense study to qualify to become a judge. Getting the appropriate certification to become a dayan (Yadin Yadin), can be part of the general semichah program. Usually, after advanced semichah learning, there is a period where the individual gets hands on practice by having an apprenticeship. Some dayanim specialize in a specific field of Halachah like conversions or divorce, while most are well-versed to handle all matters. Any dayan must be proficient in all are four parts to the Shulchan Aruch and an expert in Choshen Mishpat, which deals with monetary halachos and in Even Haezer, which deals with laws about marriage and divorce. A potential dayan will also often get training under more experienced dayanim in order to learn how to apply what he has learned to practical situations.
But it goes so far beyond studying sefarim. Many dayanim converse with lawyers to educate themselves on secular law as well. Some, like Rabbi Avrohom Yehoshua Kirsch, another dayan at the RAA who was a very close talmud of Rav Belsky zt’l, even enrolled in coaching and psychology courses so he can be better equipped in handling divorce proceedings and work on saving troubled marriages. Being a dayan goes further than Shulchan Aruch and Halachah,” elaborates Rabbi Kirsch, “you need to study people; you need to understand human psychology.” Most dayanim have ruled on cases that run the gamut of human experience and are equally qualified. “In Halachah, issues are the same whether it be a problem with a shared driveway, distribution of assets, or disputes in purchases; human experience doesn’t change much, but it’s best to choose batei din and dayanim that are local,” Rabbi Shulman advises.
The Beth Din of America recommends that both sides pick judges who regularly serve on a beis din (in a zablah case where one party chooses one judge and the other party chooses another judge). The judges are not lawyers for the side that picked them. A judge can decide against the litigant who chose him. However, a judge has a particular responsibility to make sure that beis din fully considers the case in favor of the side that picked him. Rabbi Kirsch explains that at the RAA they rotate between around five judges. But when they are not sitting on a case, many employed at the RAA are busy answering complex questions or discussing sheilos. In preparation for a case, they will often look up simanim in Shulchan Aruch, so that they know what type of questions to ask during the hearing. In particularly hard cases, adds Rabbi Katz, their junior and active judges will discuss their questions with the senior judges like HaRav Hershel Kurzrock, who is the Rav of Young Israel of Kensington and av beis din, or Rabbi Peretz Steinberg, who is Rav at Young Israel of Queens the sgan av beis din. They would like this line to stay in. Being a dayan is typically not a full-time occupation, most have other jobs like being a Rav or giving shiurim.
See You in Court
What’s the process of starting a case in beis din?
When a Jew has a grievance with another Jew, they call beis din and provide details to the intake secretary who is trained to be very discreet. In fact, the dayanim are not even granted any specific information regarding the case until it formally appears before them. The RAA’s beis din is unique in that they have a hard rule that their dayanim cannot also serve as toenim (legal representatives). “We do this so there is no conflict on interest,” explains Rabbi Mirocznik.
If the grievance is deemed worthy, a case is opened and the caller now becomes the toveah (plaintiff) and the other side becomes the nitvah (defendant). An official invitation to appear before the court, hazmonah is issued to the nitvah. Just like getting a jury duty notice in the mail, it is not advisable to disregard the summons; Jews are mandated to respond to the beis din and they are given notices three times before issuing a siruv, (judgment of contempt), where he essentially shunned from engaging in communal activities such as getting an aliyah, davening with a minyan etc..
If the person being summoned does not want to go to the summoning beis din, then he can suggest an alternative one. Most communities have accepted the custom of the Nitva offering three alternate batei din for the toveah to choose from. If they cannot find a mutually acceptable beis din, a “joint bet din” is formed by a procedure called zabla where each side picks one judge. The two judges that were picked select a third judge together, and the three judges together form the beis din. Once both parties respond, the beis din administrator sets up a mutually convenient time to meet. Some batei din have a set location, while oftentimes the hearing will take place at a designated location like an office or shul. The RAA receives many calls a week for gitten cases, choshen misphat and conversions; many of the inquiries are referred to from the Israel rabbinical courts. The dayanim will not hear one side of a dispute unless the opposing side is present. A judge who has preconceived opinions or any other prejudice must recluse himself from the case. Cases can vary in time depending on their complexity and willingness of both parties to adhere to rulings, but a session may last only one to two hours; complicated cases may require multiple visits.
The hearing begins with the dayanim verifying the identity of both parties by asking for photo documentation. It was expected for both the litigant and defendant, as well as any witnesses to remain standing during the procedures, however, Shulchan Aruch allows all parties to remain seated since the people are weaker in today’s day and cannot concentrate if standing indefinitely. The litigant usually goes first telling his side of the story and presenting any evidence he has; the defendant follows. Thereafter, witnesses can testify. There should be five copies of evidence provided since it must be shared with everyone – the judges, and the other side. Batei din do not have the ability to subpoena witnesses, and witnesses are required to be observant males above age 13 who have no stake in the outcome of the din torah, and who are not related to either party. Two witnesses are required to establish a debt despite the debtor’s denial. Jewish law recognizes that in many circumstances testimony will only be available from witnesses who do not meet the criteria and will therefore accept testimony from other people, at least regarding financial claims. Even though women cannot technically testify, they can attest to facts before the beis din. The testimony from interested parties such as relatives and employees is always taken with a grain of salt, even if they are allowed to testify. Witnesses do not attend the proceedings except during their testimony. There is no cross examination. If one side wants the beis din panel to ask a specific question to the other side or to the witnesses, they make that request to the panel, and the panel decides whether to ask. Unlike in secular court, witnesses are not sworn in, although they are obligated under Jewish law to tell the truth and the beis din preps them with the severity of false testimony.
The judges ask questions when necessary. The parties take turns presenting, going back and forth, until both sides have fully presented and expressed their views on the dispute.
Some, litigants, especially women, might be intimidated by beis din, so they are encouraged to bring a friend or relative with them for emotional support. If someone feels they cannot adequately express themselves or the case and requires representation in court, they can bring in a toen, who serves as a legal rabbinical advocate to speak on their behalf. The practice goes as far back as the 1400s where there is evidence of the term found in a response by the Mahari Bruna, an Ashkenazi posek living in Germany when he was asked whether a toen is allowed to switch sides during a case. United States courts will not recognize a beis din’s decision as binding without the presence of lawyers representing the litigants. However, lawyers do not necessarily know Jewish law; they just represent the litigant’s rights in secular law therefore a toein needs to be well versed in Halachah in order to represent a litigant properly in beis din. However, the lack of a certifying process means that anyone can declare himself a toein and no matter how he behaves, he cannot be stripped of his certification, therefore in addition to be well-versed in beis din proceedings, they must be known as honest and G-d fearing individuals who respect rabbis, states Rabbi Gil Student. It is precisely for this reason that the Beth Din of America only allows licensed attorneys to serve as to’anim (Rules and Procedures, Section 12).
However, it should be noted that because to’anim tend to take up the court’s time, they should only be hired in cases where they are necessary (when the litigant cannot articulate his case on his own). On this subject, Rabbi Chaim Jachter writes in his book Grey Matter II that while halachically speaking to’anim are not ideal in a beis din situation, nevertheless various realities effected an adjustment in policy allowing for their presence for the past 100 years. “A compromise of sorts requires that the litigants plead their case, and counsel speak later,” he concludes.
Rav Yonah Reiss (Beit She’arim 2:200–201) similarly notes that
to’anim should be allowed only in cases where they are necessary. For
example, there is no need for to’anim if the litigants are capable of
representing themselves. Moreover, the to’anim must be known as
honest individuals, and there must be some way to rescind their license
should they act unscrupulously. Due to this last consideration, the Beth
Din of America (Rules and Procedures, Section 12)
And the Verdict Is….
After questioning both sides and deliberating, the beis din will usually ‘sleep over it’ before they reach their decision. Sometimes more consideration is required so the decision will be postponed for several days so that the dayanim can reconvene.
The psak (decision) is issued in writing. Jewish law doesn’t require any explanation of the ruling. The decision doubles as an arbitration award, so as to be enforceable under secular law as well. Only a beis din operating under the jurisdiction of New York’s arbitration statute, Civil Practice Law and Rules Article 75 (CPLR), can produce legally enforceable decisions that can be confirmed and enforced by a New York Court. One section of the Civil Practice Law and Rules 7506(b)8 4 states that for the ruling to be upheld in secular court, the arbitrator must have appointed a designated time and place for the hearing and notify the parties in writing personally or by mail no less than eight days prior to the hearing.
Beis din’s power is limited when it comes to enforcing rulings. They cannot issue warrants, garnish wages, or put anyone in jail. Most of their influence comes in the form of social pressure and ostriztion “We are in exile now; when we had the Beis Hamikdash, we had a central authority,” admits Rabbi Shulman adding that the concept of cheirum is a misnomer: “We don’t excommunicate anyone, rather we treat him more like a misarev din, (a refuser).”
Rabbi Kirsch interjects saying that beis din does have the power to issue an ekul (injunction) which can collect monies from people that owe the losing side money. Additionally, unlike secular courts the verdict is not final. If one side obtains new proof, a new hearing has to be had.
What happens if one side rejects the outcome? Can they appeal?
The decision is usually final and goes into effect immediately. There is no option to appeal, but the Beth Din of America allows “requests for modification” as part of its rules, unlike most other batei din. Decisions are only overturned if the appellate judge reviewing the case finds a clear mistake in the original decision. “Appeals shouldn’t be happening,” says Rabbi Shulman, since prior to the hearing, both parties must sign a binding arbitration agreement, which is recognized by civil courts called a shtar berurim.” This document ensures that beis din’s ruling will be final. Without singing this, the case cannot be heard. “By signing this document,” elaborates Rabbi Shulman, “you are essentially waiving your right to an appeal.”
If one objects to a beis din ruling, he cannot then turn around and take the case to civil court as the original ruling will be enforced by the civil courts if the beis din adhered to the civil rules for arbitration.
To those that make the allegations that judges can be swayed in their ruling or present bias, Rabbi Katz asserts that their dayanim have yiras shamayim and always aim for compromise or settlements whenever possible. Dayanim are trained not to look at someone’s appearance, clothing, stature, or social standing when it comes to hearing a case.
Dayanim are very knowledgeable on law and frequently read up on law journals and decisions. They don’t just reach their conclusions based on personal opinion. “You have to operate within the legal parameters of the country,” states Rabbi Shulman. He gives the example of the diamond industry where when one says the expression “mazel v brachah” it implies a done deal just like a handshake in some industries counts as a contract. “Unless it conflicts with Halachah,” he clarifies, “we always abide by city and state law.”
Here’s My Bill
Batei din generally will not give you a flat fee for their services as they tend to vary depending on the complexity of the case or even the financial standing of the litigants. The RAA’s fees are clearly broken down on their website, which also features forms litigants can download, which they will need for the proceedings. According to their webpage, the plaintiff will be a charged a onetime fee of $300 for the summons and additional charges may be assessed in the event of the need to issue a seruv. There will be an hourly charge of $750 to be split evenly by the plaintiff and the defendant for each session, which is payable when the session ends. In the event the matter at hand involves a claim under $5,000 and is heard by a single dayan, the parties will split a $400 hourly fee which is also due at the end of the session. If a party asks for a review of proceedings, he will pay $1,500 per hour payable once the review is complete and before the decision is distributed by the administrator to the parties. If one requests just a hazmana, Rabbi Kirsch says the fee is typically $50, and $25 for each additional summons required.
Rabbi Kirsch wishes the public knew that beis din is not a profit seeking institution. “We are looking to settle things quickly and amicably. Where we can settle, we strive for that. We are not here to make money.” “Anyone who thinks we are in the business of making a profit here is greatly mistaken, “ declares Rabbi Mirocznik, “ this is actually a losing money proposition as everyone involved is a ben yiras shemayim and is not in this to earn quick cash. ”
Impact of COVID-19
During the height of the pandemic, secular courts practically all over the world suspended services, but batei din, for the most part, continued working. If one was affected financially by COVID-19, taking the matter to secular court last year would have been nearly impossible as the courts were only accepting emergency cases. Beis din, however, had more flexibility to hear cases. If anything, the pandemic has made beis din busier since the economical ramifications of the shutdown led to increase cases dealing with cancelled Pesach travel plans, lost wedding hall deposits, non-payment of rent, and cancelled simchos and dinners.
“For a short while there were no gitten being written, but overall COVID-19 didn’t affect us,” Rabbi Katz reports. And unlike divorce applications spiking during the pandemic (for non-Jews), Rabbi Shulman is happy to report that based on what he heard from other beis din mediators, there hasn’t been an increase in Jewish divorces. Rabbi Shlomo Weissman, the director of the Beth Din of America, noticed that locally there has been a pronounced slowdown in commercial disputes, along with venue changes that occasionally took his beis din to a New Jersey backyard. At the same time, an early dip in divorce cases has gradually subsided. “My sense, just speaking anecdotally to colleagues across the country,” is they’ve been engaged in similar practices,” he is quoted saying on the organization’s website.
Even before the pandemic, beis din has always been the cheaper and faster option compared to secular courts, maintains Rabbi Shulman. Rabbi Kirsch agrees saying that when you go to a Jewish court, you are in the fast track to resolution. In secular court, cases can drag on for years as both parties collect data for their case. Both sides must wait until preliminary conferences are held, followed by depositions, subpoenas, interrogations and this is all before the case even goes to trial, all while surmounting hefty lawyer fees. “Going to secular court is a mistake,” Rabbi Shulman adds, “In beis din we try to expedite cases and settle as much as we can. “
Legally Speaking: Beis Din Terminology
Av Beis Din- A highly respected rabbi and posek who functions as the senior jurist or supervisor who may join in the adjudication of cases or advise the presiding dayanim.
Din Torah – Arbitration in a Jewish Court.
Hazmana – Summons or invitation to come to court.
Kinyan – An action that initiates the transaction. For example, signing a contract makes the contract take effect. One type of Kinyan is a Kinyan Sudar where an object of low value like a pen is handed over at the start of the hearing and raised it is seen as a symbolic acceptance that the parties will accept of the jurisdiction of the beis din.
Nitvah – Defendant
Pshara – Compromise. In pshara, the judges hold a hearing, and order a settlement based on the equities of the case. As such, sometimes the judges rule entirely in favor of one side, even though they are judging according to the rules of pshara. The primary distinction between din and pshara is that the judges in din are more limited by the technicalities of Jewish law.
Pshara krova l’din – Compromise or settlement. This is a form of pshara in which the judges may not deviate freely from what the outcome would have been if the case were to be judged according to the rules of din.
Seruv: Contempt of court order
Toveah – Plaintiff
Toen/ Toen Rabbani – A representative, or lawyer of one of the parties.
At a beis din meeting (R-L): Rabbi Yaakov Klass, member of presidium, Rabbi Yaakov Shulman, member of presidium; Av Beis Din Rabbi Hershel Kurzrock, Rabbi Yaakov Dovid Spivak zt”l member of presidium, Rabbi Duvid Katz menahel, Rabbi Laibel Wulliger, Rav and dayan of the beis din, Rabbi Avrohom Yehoshua Kirsch junior dayan, Rabbi Moshe Brody junior dayan, and Rabbi Mendy Mirocznik, executive vice president.