§ 4.20    The Elements of Thinking Through the Policy

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Thinking through the policy has seven elements: engaging the client, figuring out the problem and the objective, asking for details, researching the facts and law, analyzing alternatives, creating a coherent solution, and conducting a reality check.

Before you do any of that, however, you must adopt a posture of skepticism.

Look back at the quotation at the beginning of Chapter One in which Middleton Beaman is depicted asking, "terrierlike," his questions. The questions do not come from looking at words on a page; they come from taking everything with a grain of salt. Information may be wrong; assumptions may not hold; facts may shift; laws may overlap; people may disobey.

The client often comes to you with a prejudged sense of what needs to be done. Do not take that sense at face value: Respect it, but do not accept it. Clients do not always think through the policy and, when they do, they do not always do it thoroughly. In many cases a client simply starts with the recommendations of a third party. The recommendations may be sound, they may be unsound, or they may be misleading. What the client needs most from you is critical thinking and independent, frank advice. Do not surrender your judgment.

Be skeptical. Question assumptions. Imagine scenarios that might unfold and discuss them with the client. In many cases the client will have a firm sense of whether a scenario should be covered or not. Above all, use good judgment to decide when you have done enough. At some point you are not adding value so much as splitting hairs.

You have to pick your battles. Sometimes you don’t have time; sometimes your client doesn’t have patience. But you have a duty to your client not to be a "yes man" or a scrivener. Sometimes you need to remind the client that slowing down is an option.