It’s a cliche that functioning societies are built on trust.
Whether in politics, business, or even personal development (as we make deals with our future selves), trust is the grease that keeps the wheels of collaboration turning. We need to trust each other to get anything done.
But how about in lawyering? Is trust an asset or a weakness? And is your answer to that question making it harder to do your job well?
The research is clear—a tendency to trust optimizes outcomes on average—but you have to think in individual transactions. Are lawyers too distrusting to make good decisions in those instances?
In this piece, we’ll explore the concept of trust, the impact of trust on cooperation, and whether lawyers have trust issues and what that means for them and for their clients.
Although researchers struggle to agree on a common definition of trust, the context always involves interpersonal relationships.
That is, trust is a feeling between two or more decision makers. In different situations, trust measures our ability to rely on someone else.
One of the earliest definitions of trust comes from research into romantic relationships. According to research by Rempel et al. (1985), trust encompasses three terms: predictability, dependability, and faith. These terms offer a good starting point for lawyers evaluating our own relationships with trust.
As Rempel’s team explained, these three sentiments are progressive (meaning, predictability precedes a sense of dependability, which then precedes faith) and variable (meaning, while unequally felt in each moment, together contributing to a sense of trust).
Popular definitions of trust often reflect this focus on expectations between partners. When you trust someone, you reasonably expect them to do what they say they’ll do, and you act accordingly. You put yourself at risk when you believe that your trusted partner will have your back.
Importantly, however, trust calculations are rarely conscious acts. Every day we are forced to evaluate whether drivers on the road will obey traffic laws, bosses will reward us for our good efforts, and neighbors won’t raid the cupboards at night while we sleep. If all that calculus were conscious, our minds would be taxed beyond overwhelm.
So, instead, trust is heuristic, a mental shortcut or a gut reaction, and that efficiency has costs.
We are not, however, mere victims to these mental habits. We think therefore we are, and we have the ability to consciously evaluate our own mental models. We can recognize them, adapt to them, and purposefully improve them.
Trust and distrust may seem like uncontrollable habits of our evolved brains, but humans have the ability to tame them – and lawyers might have a duty to do so.
Frustrated by the many definitions of trust from the fields of psychology, sociology, and online dictionaries, information scientists Harrison McKnight and Norman Chervany tried to nail down an action-oriented and measurable concept of trust.
In business as in life, McKnight and Chervany said trust involves four calculations that we constantly weigh:
These questions change trust from something internal to something external. We define trust not as something we merely feel, but as an evaluation we can make of the trustworthiness of others.
As lawyers, we are asked to determine trustworthiness all the time.
Will the other side in an agreement live up to their end of the deal? Are they even able to? Can we rely on the political, economic, and environmental situation to stay roughly the same? Will my side deliver on its end, and what happens if we don’t? Will my so-called partner fight to steal credit for my hard work?
Every day we are tasked with projecting out possible harms. “Issue-spotting” is a cornerstone of the law school experience, especially on exams. We wind up a clock in our minds, let it spin, hold suspect certain facts in a fact pattern, and imagine the worst possible outcomes stemming from them.
Although that kind of thinking might have gotten us the coveted “A” on a law school exam, it’s possible we’ve taken the mindset too far.
Every think piece in legal seems to come back to the metaverse lately, and this one is no exception. But we’ll take you there by jumping all the way back to virtual worlds in 2007, and the strange impact of avatars on how we see ourselves.
Researchers Yee and Bailenson created an experiment to test the “Proteus effect,” which is the tendency for people to be affected by digital representations of themselves, including online avatars, social networking accounts, and dating profiles. They wanted to know if changing the way we perceive ourselves changes our trustworthiness and trust in others.
The experimenters introduced subjects into a virtual world in which they would be represented by digital avatars. Subjects were divided into two groups. Both groups were instructed to engage with another avatar in the virtual world, then tasked with dividing up virtual money. They wanted to see whether the subjects would divide the money fairly between themselves and the other avatar, which was puppeted by one of the experimenters.
One factor distinguished the two groups: one set of avatars was made to appear taller than the experimenter’s avatar, and the other set was made to appear shorter. Because being tall is associated with self-confidence and dominance, Yee and Bailenson expected the tall avatar group to act more independently and to unfairly divide the money. And they did.
Interestingly, the taller group also divided money unfairly once they entered the real world, and that prompts a question about lawyers’ relationship with distrust:
If we understand “thinking like a lawyer” to mean a default to distrust, might we create a distrusting avatar that we unnaturally become?
This is not merely an academic question. It gets to the core of what it means to be a lawyer. If a client wants us to be the distrusting voice in the room, part of a larger ecosystem of diverse minds, that avatar may serve us well; if the client expects a realistic assessment of plausible risks, a default to distrust may actually undermine our ability to serve them well.
Distrust is an evolved response that keeps us safe; trust is also an evolved response that keeps us safe. Neither habit of mind is universally good but is useful in different contexts. Optimization is the healthy brain’s goal, not virtue or vice.
As an agent for your client, defaulting to distrust may lead you to overestimate risks and avoid productive relationships. This is not optimization, and it is not the way to best represent the interests of your client.
Unless, of course, distrust offers positives that trust simply cannot.
“It’s good to trust others but, not to do so is much better,” Mussolini said.
While Il Duce overgeneralized for his own devious gain, there may be some truth to his statement.
Research shows that trusting too much makes test subjects perform worse at memory tasks because they see similarities that aren’t there; being distrusting actually makes you less likely to stereotype as you tend to think more critically; distrust makes you more likely to question your first assumptions; and the hormone oxytocin, also known as the “love hormone” as it encourages trust and cooperation, leads to in-group bias as it only binds when the trusted partner looks like you.
Cognitively, then, distrust seems to be a superpower.
Take creativity, for example. Although counterintuitive, being distrustful has been positively associated with creative thinking. People who show distrust or skepticism are more likely to conceive of ideas and solutions in new ways. The tendency to push back on partners also helps push back on more conventional ideas.
But, researchers note, distrust inhibits creativity in other ways. That tendency to push back creates distance with collaborative partners when social sharing leads to more original ideas in groups. The superpower of distrust can be kryptonite when used in the wrong context.
And that’s the thing with this trust/distrust pairing: it creates a false choice.
What researchers have increasingly done—and what lawyers should probably learn to do—is to see trust and distrust as distinct mental disciplines working in concert, rather than as extreme ends of a spectrum.
On average and in the long run, we should trust more than we do. The trouble is that we don’t make decisions in averages and we often don’t reach the long run. So why trust?
This is the optimization problem. While we are wired for simultaneous trust and distrust, optimal outcomes require adapting to specific contexts. Developing a fixed disposition of distrust may seem like good lawyering but it doesn’t always benefit the client. And, to put it frankly, it doesn’t benefit us.
In interpersonal relationships, distrust is highly correlated with personal distress. Not giving faith to a partner, whether romantic or business, can be a tax on the unbeliever. We simply aren’t made to be alone. Our skepticism may occasionally lead to better outcomes for clients but it can keep us in a constant state of anxiety and make it harder to advance our careers.
In contrast, being extremely trusting doesn’t lead to interpersonal failings. Trust does not equate to gullibility or other relational dysfunctions. Leading with trust does not necessarily mean you undermine your client’s position.
The truth about trust, as Dr David DeSteno put it, is that humans are barely better than average at predicting the trustworthiness of another party. You could flip a coin and be right about your skepticism almost as often.
So what are you to do as a practitioner?
The next level of understanding seems to come from using trust and distrust as conscious levers. Neither is a perfect servant, and their reliability is incredibly context-dependent.
Yes, you will be relied upon to be the “the adult in the room” as you represent the interests of clients. Yes, that will mean being a Negative Nellie on occasion. But, for your sake and your client’s, that can’t mean you employ distrust first and finally.
Calculating emergent outcomes is an asset, but “issue spotting” is only half the story. Clients also need you to assume perfection after you’ve assumed disaster, and every plausible outcome in between. If you develop a disposition of negativity rather than a toolbelt of equally-fed cognitive shortcuts, you’ll find your life and your advice lacking.
If you find you have trust issues, we suggest you address that right away.
As Factor reorients to focus on humans, topics like trust begin to demand more attention. We dive into the quality of trust in greater detail in our recent webinar, 'Do Lawyers have trust issues?'. Watch the interesting panel discussion with Dr. Larry Richard, Ann Rainhart, and Michael Callier.