Environmental Law 101: The Role of Being Open Minded.

I have previously written about my personal algorithm for resolving major enforcement cases or successfully getting complex projects permitted—i.e., defining success, planning strategically and focusing on outcome. This process requires some effort because it requires thinking. I am constantly amazed, however, by the self-assuredness of the advice given by many lawyers and consultants on complex issues. Many times, of course, this is the “salesman” talking—the person wants to “make the sale” and is willing to worry about consequences later.

Years ago, I was asked for help by someone running for a major political office. He wanted ideas that allowed him to support some sort of environmental action. I prepared a proposal to have the state’s three major universities form a consortium to study, and to make proposals to resolve, the state’s air pollution problem. The results of the study would have been useful nationwide; thus, the proposal included the idea of some federal funding—certainly not an unusual concept for “research” universities which have the “horse power” to deal with efforts of this type. The response I got was: “You are really open-minded.”

I have written previously about what I view as the liability of ideology—the concept that a theory predetermines the right outcome. To me, it is a intellectual shortcut, an “elixir for what is bothering you.” It is a synonym for quick, oftentimes sloppy, thinking. Ideology is at the extreme end of having a philosophy which I define as a fundamental approach to problem solving without any preconceived outcome—other than successfully achieving a preset goal. Ideology dictates what to conclude; philosophy demonstrates how to think.

I pride myself on being “open-minded.” That is the tradition from which I come. That is how I find the best solutions for clients. It is embedded in a position published by the University of Wisconsin’s Board of Regents in 1894 that stated: “Whatever may be the limitations which trammel inquiry elsewhere, we believe that the great state University of Wisconsin should ever encourage that continued and fearless sifting and winnowing by which alone the truth can be found.” To ideologues who have the gift to make decisions without needing to think, the concept of “sifting and winnowing” can be perceived as trite. To me, it is the process for coming up with a successful approach to complex enforcement and regulatory issues. It is a thought process that I believe attorneys owe to their clients.

Clients, of course, have biases. They include, typically, an animosity toward government; they also want things done quickly—usually more quickly than the system allows. Above all else, they want certainty. All these “drivers” are understandable (and legitimate). But playing to a client’s antipathy of the government does a disservice to the client. More importantly, a client needs to understand what the issues are and what the path to resolution is. It needs to understand the complexity of a situation, but it also needs a simple and clear explanation of how the situation can be resolved. In making this point, I am reminded of the admonition by Ninth Circuit Chief Judy Alex Kozinski who once wrote: “Simple arguments are winning arguments; convoluted arguments are sleeping pills.” In my opinion, a client should be shown as much respect as a court and deserves to have all its options both considered and explained to it—in terms it can understand.

Takeaways: There are always alternative approaches to problems. On the way to determining the best approach, a lawyer should consider all alternatives and their respective strengths and weaknesses. There is always a solution; the question is what the right one is for a particular client in a particular case. I believe that clients appreciate sincerity and clarity; they want to know their options and the truth. This requires that a lawyer leave ideology at the door and do things the old fashioned way—by thinking and, yes, “sifting and winnowing.”