Policy changes by litigating or lobbying?

• Author: Hogle, Yvonne Rodriguez
• Position: Eagle Briefs

SUPPOSE THE DIVISION of Occupational and Professional Licensing decides to amend a rule that sets educational criteria for nurses. The new rule would no longer give credit to nursing students for classes taken from distance learning centers. Your distance learning center offers classes to nursing students. A change in the rule will drive you out of business. What would you do?

Businesses regularly face situations of this type. Their first reaction would probably be to engage the rulemaking body in a lawsuit. However this may not be the most expedient or appropriate approach. A practical alternative is to seek change by lobbying the legislature or the regulating agency "When a company decides to litigate an issue, sometimes it is like trying to fit a square peg into a round hole," says Charlie Evans of Charles Evans & Associates, a Salt Lake City lobbying and consulting firm. "By lobbying the legislature, a company can craft legislation that specifically addresses the issue." Costs, the likelihood of success in the forum, and the appropriateness of the forum are a few factors that companies must consider.

Costs are difficult to predict. If a business hires a lawyer to file a lawsuit, the lawyer may have to take the case all the way to the Utah Supreme Court before the desired outcome is achieved, with no guarantee of success. The opponent may use pre-trial tactics such as filing motion after motion to drive up the business's costs as part of its strategy to discourage the business from pursuing the case. If relevant, sensitive information that the business was hoping to keep confidential may be divulged during the trial. For instance, in the distance learning center example, the center may have to disclose the names and number of students taking its courses, information that their competitors would be eager to know.

If the company hires a lobbyist, the amount of time that she may have to spend with regulators to meet her objective is unknown. She may not even succeed in persuading legislators to embrace her position. But in most cases, the lobbying process requires less time, energy and money than litigation. Jerry Oldroyd, an attorney and lobbyist in Salt Lake City, points out, "A company can achieve faster results and...