As you know, I am a big fan of contracts being tools to enhance trust. This post is inspired by Episode 98 of The Hearing (a legal podcast) on Trust and Scepticism for Lawyers, featuring Dr Larry Richard, Ann Rainhart and Michael Callier.

What is trust?

Dr Larry Richard says it has several different meanings:

  • reliability – I can count on you to deliver
  • integrity – I trust you will return my car if you borrow it
  • interpersonal trust – I feel safe in being with you.

Dr Richard has researched how we can build interpersonal trust and it takes two primary qualities: It takes perspective-taking or cognitive empathy. I can see what your experience is. I can understand what you need. I can understand the perspective that you have on this particular transaction or dispute as opposed to where I am coming from. And… you build trust by basically caring, by integrity, by reliability. I do what I say I am going to do. 

These elements could be summarised as character and competence, as referred to in Stephen MR Covey’s The Speed of Trust.

Lawyers are not trained to be neutral or impartial – elements of scepticism. Lawyers are the most sceptical profession, far more than their clients!

What is scepticism?

Scepticism (not believing what you see, hear, read) is valued because it enables lawyers to keep asking difficult questions, and not make assumptions. But scepticism is the antithesis of what lawyers need to thrive, solve complex problems and work together.

Scepticism is not conducive to collaboration both within the legal workspace and for a lawyer’s clients. Ann Rainhart says lawyers are trained not to trust… but they can act in ways which don’t impact the legal product (eg contract) negatively and be prompted to be more collaborative and show the elements of trust noted above.

Of course, this means that sometimes lawyers are not using their skills to solve  client problems, but are acting as hired guns. Which would you prefer your lawyer to be?

What should you do?

If you are working with lawyers or legal documents, consider the extent to which trust or scepticism has been woven through their advice or documents. If you’re instructing a lawyer, give them clear instructions about how you want to them to act on your behalf – sceptical and tough, or trusting and collaborative?

Be aware that lawyers may not write contracts in a way which builds trust with your clients or suppliers, or which encourages collaboration. Many of my clients ask me to re-balance, edit and simplify contracts or T&C written by lawyers that are too complex, do not represent their values or even interfere with/hinder doing deals.

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