At this point, coronavirus precautions in America seem to be on the honor system. With the CDC’s new guidance last week indicating that fully vaccinated Americans could go without masking or distancing in most indoor and outdoor situations, we now face a conundrum when we see someone going about unprotected: Is it because they are vaccinated, or is it because they are careless? For those managing businesses and other public places, it isn’t easy. As virus czar Anthony Fauci told CNN, “You’re gonna be depending on people being honest enough to say whether they are vaccinated or not.” To a certain extent —- and this is much easier to do when you yourself are fully vaccinated — it is a matter of who and when and where you just have to trust.
It seems clear that the pandemic itself, along with the larger context of social polarization that has accompanied it, has eroded that trust. This current dilemma got me thinking about the larger phenomenon of social trust, and what creates it or destroys it. It is a practical issue for persuaders, and a pretty fundamental issue as well. You might have the better evidence, but if you or that evidence is not trusted, then it is to no avail. So, extending the issue past the current mysteries over the unmasked, I want to use this post to share some general thoughts on what builds trust. For practical persuaders, and for litigators in particular, I think it is useful to think of trust as four things rather than just one. Drawing from earlier research (Reina & Reina, 2007), trust varies depending on its source: There is contractual trust, communication trust, competency trust, and caring trust. Let’s talk about how each might apply to the attorney or the witness.
This is trust based on an agreement. The witness has sworn an oath, and the attorney serves as an officer of the court. So, in a way, trust is built by agreement: The witness has agreed to tell the truth, and so has the attorney, even more broadly having agreed not to knowingly sponsor false testimony or misstate the facts or the law. These agreements, however, are formal, and in an adversary system we might expect fact finders to appropriately take things with a grain of salt, assuming that the motives to help your own side might be stronger than the motives to be strictly truthful. So contractual trust also emerges more organically from keeping your promises, following through on your commitments. If you say you are going to do something, do it. If you are an attorney and you promise the jury something in opening, you had better fulfill that. If you are a witness and you answer one way in deposition and a different way in trial — and said both times that it was your best recollection — then there had better be an explanation.
The second form is trust formed in a relationship based on clear and frequent communication. With time, we get to know someone, and as long as that knowledge is generally positive, then liking and trust grows over time. Familiarity in and of itself builds credibility. That is probably why we would be more likely to trust a person unmasked around our kids more if we have met them a time or two than if they’re a total stranger. For litigators, this is a reason why you want to communicate conversationally with jurors, and why you might want to reveal a bit about yourself in voir dire. It is also why you will hopefully be more trusted in closing arguments than you were in the opening statement. Work on building a relationship with your fact finders that is based on clarity, respect, and honesty.
This is what comes from presenting yourself as someone who knows what you’re doing. That matters in big ways: it is why showing a mastery of the law and the facts is a matter of credibility and not just proof. But it also matters in small ways: showing that you don’t quite understand the technology in the courtroom, or the Zoom room, undermines trust because it cuts against your general perceived competence. Some courtroom attorneys might still have the habit of keeping their mind on the case and the jury while leaving the technology to others. But I think it is a safe bet that those days are coming to an end. For the witness, particularly the expert, that demonstrated competence also helps. A self-deprecating fumble here or there may not hurt you, but in general, you will be more trusted if, while in front of the jurors, you seem to know what you’re doing.
The final form of trust provides the human and the emotional side of the equation. If you present as someone who has genuine concern, both for those on “your side,” but also for everyone including the fact finders, you are more trusted. In the courtroom, judges and jurors understand that you are generally there to protect your own interests. But take opportunities to show that you are including everyone’s best interests as well. Be gracious and human with those on the other side. Talk about the benefits (from an audience’s perspective, not your perspective) in hearing from a witness, or in understanding a particular point. In general, show that you see your adversaries, witnesses, and fact finders as people, and not just as means to an end.
Ultimately, deciding whether we can or want to trust that un-masked stranger in a store isn’t so different from deciding whether we can or want to trust the suited stranger in a courtroom. It can be a pretty subtle and nuanced thing, and what builds or degrades it can vary quite a bit from person to person. But, generally speaking, the source that considers those four C’s — contract, communication, competence, and caring — will fare better than the source that lets one or more of those slip.
Reina, D. S., & Reina, M. L. (2007). Building sustainable trust. OD Practitioner, 39(1), 36;
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