Monday, October 2, 2006

Trust, Lawyers, and the Linguistic Turn

Posted by Jeff Lipshaw

A reader asked by way of an e-mail how a client knows whether a lawyer litigating a case is spending the right amount of time (i.e., not under-representing and not padding the bill either with useless hours or with unworked hours).  I wish I had a better answer, but I can see how it would be difficult for a non-business consumer to know.  I suggested the usual proxies - detailed bills, willingness of the lawyer to explain, references from other clients, etc. - but I am sure none of those are satisfying.  How do I know whether a house in this neighborhood is worth $X, or that an auto parts business is worth approximately 4-5 times EBITDA?  I have the benefits of heuristics - rules of thumb - and experience that the ordinary consumer may not.  I know from years of experience that doing this kind of deal will cost $X, or litigating a case for two years will cost $Y.

The question launched me into a musing during the morning run about trust.  Trust is immensely interesting as a theoretical matter.  I am dealing with it now in the context of duties as between deal adversaries (i.e. the right to disclaim truth-telling in or out of the acquisition  document). Claire Hill (Minnesota) and Erin O'Hara (Vanderbilt) recently posted an interesting article on cognitive trust, in which they consider instances of non-optimal trust, and possible legal remedies.  Is there a linguistic turn to trust?  If philosophy of language tells us that there are no private languages, that all language is a shared experience of attributing meaning and context to otherwise arbitrary symbols, is the acquisition of trust somehow the acquisition of a shared language?  My heuristic on the value of businesses or the value of houses is not something I hold privately, but the internalization of a social standard or expectation.  I am comfortable with the jargon, and accept it as true.  Can the same be said for the relationships between lawyers and clients?

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Two quick thoughts. First, did I read this post correctly that there are realy parties to a transaction trying to disclaim truthfulness in the transaction document? If so, what party, or, more precisely, what party's attorney would agree to such a diclaimer? Second, perhaps you are on to something with trust being inherent in language, although I am not sure how far Wiggenstien would agree with this idea. Does this idea of trust undermine, at least to some extent, the modern individualistic conception of the policitcal?

Posted by: Steve Wadsworth | Oct 3, 2006 6:40:06 AM

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