On Using All of the Arrows in the Quiver
Oregon Administrative Law Newsletter
by Kelly Clark
June 2002

Lawyers usually think in boxes. We were trained that way. We have boxes for torts, contracts, real estate, constitutional law. Litigators who handle private disputes within those boxes often only have a few alternatives available to them. They can negotiate a resolution, either before or after filing suit, or they can go to trial.

Those of us who are in the private practice of public law – handling disputes with governmental agencies – frequently get stuck in another box called "administrative law." Too often, we also think only in terms of a few options: negotiate with the agency, engage in administrative litigation, appeal. But with the often unequal litigating power between our clients and the government which generally has competent counsel able to litigate indefinitely, too often we have only one economically viable choice for our client: essentially a negotiated surrender, where we attempt to get the best terms we can. This is a frustrating and unfulfilling way to advocate. Fortunately, however, it is not the only way. We can think outside the box. There are other "arrows in the quiver." Those arrows include not only administrative negotiation or litigation, and not only judicial appeal, but early court proceedings, skillful use of political and legislative relief, and – occasionally and very carefully – use of public relations and the media. All of these arrows can be effective in bringing down the target – a stubborn governmental agency.

Most of us who practice administrative law understand the tools of the Administrative Procedures Act. We are skillful at negotiating, or litigating, contested cases or disputes in other than contested cases. We know how to go to the court with an APA appeal, or with a writ of review or mandamus from a local government action.

However, in my experience, fewer of us think about marshaling political support or petitioning the agency under the APA for rule-making. On four or five different occasions, I have been successful in mobilizing an existing interest or trade group or assisting the client in creating one, which then brings pressure to bear on the agency for a new rule or amendment to an existing rule. Sometimes the agency cares more about its rule than it does about an alleged violation of the rule. This approach can sometimes achieve a better and less expensive result than a long contested case.

The same approach can often be used with local government. Especially in small towns, rather than going round and round with the local compliance officer, why not marshall the Chamber of Commerce and get the ordinance repealed? The answer is that usually we do not think of that option. That arrow stays in the quiver.

Similarly, at the state or even federal level, too often we do not even consider the possibility of legislative relief. If we remember that agencies, despite all of their disclaimers, are inherently a part of the public, and therefore the political process, we can often make great headway. On several occasions my analysis of a client’s problem led me to conclude that, under existing law, we probably were not going to prevail. So we simply went to the Legislature and got the law changed. In both cases, it really was that simple. There is a common misconception that the legislative process is such a bog of quicksand, such a maze, such an obstacle course, that no mere mortal can survive it without an expensive lobbyist and a huge organization. That is simply not so. We forget that legislators are politicians, that politicians need and want public and particularly constituent support, and that every client is someone’s constituent. In the two cases I referred to above, we were able initially get a single legislator interested. That legislator was then willing to spend political capital in getting other legislators interested, and before you knew it, process was rolling. Over the agencies’ vehement objections, we successfully amended statutes and were able to negotiate, again using our key legislator as the point person, a signature by the Governor. Occasionally a legislative fix really is an option.

But if legislative or budgetary pressure is the most underused arrow in the quiver, the public or media relations is the most misused. Often our clients, hot at some bureaucracy, want to "go to the media." This is almost always a mistake. Usually, the clients are too emotional, too strident, and have not the media experience to get the media interested or to make their point. But we, as professional advocates can cultivate working relationships with those who observe and comment upon public affairs. I have had good success over the years in getting reporters (usually the print media) interested in the "human interest" angle, the "entrenched bureaucracy" angle, or the "stupid law" angle. True, for every 20 phone calls I make to reporters, only a handful ever generate any media attention. But, particularly coupled with an effective negotiation, litigation, or legislative strategy, additional public pressure can be very helpful.

So, let us think outside the box. We have many arrows in our quiver. We should use them.