An act of God?

Rightly or wrongly, the public regard the insurance, banking, legal and financial services industries with suspicion. This is the result of many years of — in the view of some — obfuscatory legal contracts which lead to misunderstandings or misplaced expectations.

The impact of these essays in obfuscation was highlighted after the 2010–11 floods in Queensland, Australia which covered an area the size of Germany. A flood is known in the business as an act of God. Legal obscurantists call it a “force majeure”.

Swathes of devastated home owners had their claims rejected due to the fine print in their product contract which made a distinction between what was an act of God (a flash flood), a riverine flood (a river that broke its banks) or an act of Mammon (blocked stormwater drains). The consequences of this lack of clarity caused a huge uproar across the nation, inflicting a trust deficit on the insurance industry that it is literally still reeling from.

The same problem faced many victims of Australia’s “Black Saturday” bushfires in 2009. Houses on one side of the street were covered, houses on the other were not.

The devil lay in the fine print.

Then there’s banking contracts that impose unexpected penalties, fees or risks that might see your house being sold from under you. Or what many perceive as the “hidden costs” of putting your life savings in a managed fund. The royal commission will no doubt get there.

Lack of clarity creates a vacuum, and into this void steps mistrust and wariness.

Banks, insurance companies and financial planners now realise that if they wish to conduct business in a way that benefits everyone, they must be more transparent in how they provide services. So they spend multiple millions on advertising, attempting to reassure the public that they are worthy of trust.

• That they can be trusted with your life savings
• That they can be trusted to help when a 100km gust knocks a tree through your roof
• That they can be trusted to get you the best yield for your retirement nest egg with minimum risk.

However, spending millions to amplify the message that you’re trustworthy is unlikely to commit an organisation to genuine change and, unsurprisingly, the public has become more circumspect.

The precarious relationship between suspicion and trust

For the public to feel confident, there must be nothing to make them suspicious. Trust is fleeting. Very fleeting. And the relationship between suspicion and trust is highly precarious. In fact, suspicion hangs like the sword of Damocles over trust.

Indulge me….

One day a bloke called Damocles exclaimed to his king that he was truly fortunate to enjoy such power and authority and be surrounded by such opulence. The king offered to switch places with Damocles and Damocles quickly accepted.

But there was a kicker.

As Damocles sat in the king's throne surrounded by luxury and power, he saw that the king had arranged for a huge sword to hang above him. It was attached to the roof by a single horse’s hair. Damocles soon wanted out, finally realising that with great fortune and power comes also great danger.

This myth shows the perilous nature of things. Like the sword of Damocles — suspicion is constantly hanging over trust, ready at any moment to put trust to death.

Suspicion is trust’s kryptonite. Its nemesis. Its Lex Luthor. A precarious relationship indeed.

Yet without doubt, trust is about the most valuable brand asset any bank, insurer, law firm or financial planner can own.

Enter plain English

Large investment by organisations in advertising their trustworthiness is not working.

Why would it? People need something tangible to truly feel comfortable depending on their service providers. One of the best ways to create real trust is with plain English. Free from embellishments, obfuscations and artifice, plain English can play a unique role in building trust; eliminating the mortal threat posed by suspicion.

Does anyone really think Joe/Joanne public know that “force majeure” means unavoidable events? Other old-fashioned words such as “aforementioned” and “thereto” are also traditionally used in legal drafting. They can, and should, be avoided.

Lawyers should talk to people in ways they understand and can act upon with confidence. This is called plain English. Put simply — or dare I say it plainly — plain.

Plain English is writing something in a way that gives someone a good chance of understanding it at the first reading. And in the way that you as a lawyer wants them to. It’s clear, direct writing, using as few words as you need; avoiding ambiguity, verbage and complex sentences. In other words, short, simple and human.

Insurers, bankers, financial service providers and lawyers who recognise the advantages of plain English are on the front foot in differentiating themselves from competitors.

The matter of ethics also comes into play. It is a fundamental requirement that a legal contract be easily understood — not only by the lawyers who have prepared it, but by those who will be bound by its terms. The use of unclear or overly fancy language just leads to confusion about what exactly the parties’ obligations are. In some cases, this uncertainty leads to court proceedings — which lead in turn to even more complicated language!

Right now, any company that uses plain English in its products has a jump on competitors, as there are surprisingly few doing it. The opportunity to shore up the elusive and highly valued brand asset of trust is very real. The marketing case for plain English is self-evident. Plain English will go a long way towards putting you beyond all reasonable doubt and beyond the brand dangers of consumer suspicion.

Let me demonstrate with samples of some of my company’s recent work:

Before: We agree to provide the Cover described in this Policy upon full payment of the gross premium as stated in the Schedule. If full payment of the gross premium as stated in the Schedule is not made, there is no Cover. Therefore the individual applying for the Cover is not covered.

After: Once you’ve paid the gross premium in the Schedule, you’re covered.

Before: We refer to your Group Salary Continuance (GSC) Plan claim. We wish to advise you of the following important information that relates to you. We note, as per the policy document, that your claim has been finalised. Please take this as your claim being finalised.

After: Congratulations. We’ve finalised your Group Salary Continuance (GSC) Plan claim.

Before: Please take this communication as confirmation that we have received your request to cancel your policy and confirm that your policy has now been cancelled.

After: As requested, we’ve cancelled your policy.

Contracts that speak more plainly and are more accessible to customers help to build the all-important sense of trust. Speaking with elegance may not be within everyone's power, but simplicity and straightforwardness are. This is why brands should try to write as people speak — that is, in a plain, straightforward way.

In plain English.

So, don’t miss this valuable opportunity. As Thomas Edison once said: "Opportunity is missed by most people because it is dressed in overalls and looks like work".

Andrew Pegler is principal of Andrew Pegler Media. He is speaking at Victoria’s Law Week on May 17 about these sorts of issues and more.