Mr. Bloom was sued in a high-figure lawsuit. He enlisted the services of a prominent lawyer who could advocate for him strongly and successfully.
They had passed the initial legal stages, and were preparing for their first appearance in beis din.
“I advocate denying everything that you can,” Mr. Bloom’s lawyer advised him. “Whatever has no record – deny! Conversely, claim whatever you can, even beyond the true amount. Also, try to stall as much as possible and throw in distracting counterclaims to wear down the other side. That’s the approach I adopted in my written answer.”
“But that’s not honest,” objected Mr. Bloom. “How can I lie in beis din?”
“Don’t worry,” replied the lawyer. “You almost never succeed with the full amount you claim or deny. Usually the parties reach a settlement agreement in the end or the dayanim rule a compromise. This approach gives us leverage to force the other side to settle in a manner advantageous for us and you’re more likely to pay what you should.”
“What if we end up settling for less than I truly owe?” asked Mr. Bloom.
“What’s the problem?” replied the lawyer. “If he agreed in the end – that’s all you care about. What’s the difference whether you were honest all along or not? That’s the way it works!”
Despite the assurances of his lawyer, Mr. Bloom did not feel comfortable with the idea. He consulted with his rav, who recommended that he discuss the issue with Rabbi Dayan.
Mr. Bloom called Rabbi Dayan and asked: “Is it acceptable to present false claims or use legal tactics in beis din as leverage to force the other party to settle?”
“The Gemara in Shavuos 31a teaches that a litigant may not lie to distort the proper legal course,” replied Rabbi Dayan. “For example, one may make an exaggerated claim in order to inflict a modeh b’miktzas (partial admission) oath on the defendant. If three partners lent, one cannot sue as the sole lender and have the other two present themselves as witnesses.” (Rambam, Hil. To’en v’Nitan 16:9-10)
“Thus, Terumas Hadeshen (#306) rules that one may not adopt deceitful tactics so that his creditors will agree to settle,” continued Rabbi Dayan. “He is withholding money that is rightfully theirs and violates the prohibition against oshek, monetary oppression.” (C.M. 12:6)
“Is there any room for leniency?” asked Mr. Bloom.
“Terumas Hadeshen points to a Tosfos [B.K. 40b], which seemingly indicates that there is legal credence to embracing tactics that make the other side settle,” answered Rabbi Dayan. “He explains there may be legal credence, but it is still wrong to do, like other cases of incidental damage, grama, that are legally exempt, but prohibited.”
“Later authorities, though, offer alternate explanations of Tosfos,” continued Rabbi Dayan. “Maharshal [Yam Shel Shlomo, B.K. 4:18] writes that when one party has a rightful complaint against the other, even if legally insufficient to obligate or exempt, he may use legal tactics as leverage to settle. Shevus Yaakov [1:163] prohibits active tactics but allows passive ones. Tumim (12:5) writes that if the defendant has a truthful counterclaim that he cannot prove, he can embrace tactics as leverage to settle advantageously in this case and minimize his loss. Even so, he should avoid lying.” (Pischei Teshuvah 12:8; Nesivos 12:3)
“What if I lied in beis din and thereby settled advantageously with the other party?” asked Mr. Bloom.
“Rama writes that you do not fulfill your Heavenly obligation until you return what is rightfully theirs,” answered Rabbi Dayan. “However, if the other party agreed to settle before reaching litigation, Maharil Diskin [Pesakim #82] suggests you do not have to return what you wrongly gained, since you are entitled to have your claim verified in beis din and he was willing to forgo a certain amount to avoid litigation.” (Pischei Choshen, Halva’ah 2:34)