Here's why I feel the way I do. When I first started practice 17 years ago, I was with one of the best personal injury law firms in the Washington, D.C. area. I was more lucky than talented when I landed that job. The bottom line is that I learned the "art of negotiation" by some of the best trial lawyers I have ever seen, and I've seen some good ones.

We learned how to evaluate a case, how the claims adjusting process works from the insurance company's perspective, and based on how they operate, how to get maximum value for every client. That involved alot of preparation, showing the adjuster that you really knew your facts, and that you had really evaluated your claim. It also included the subtle but always present perception that absent a settlement, you were very prepared to try your case.

Negotiation wasn't just passing figures back and forth until you reached the one the adjuster had in his or her mind. It was a matter of persuasion, and professional salesmanship at the highest level. I know lawyers don't like the term salesmanship much, but the fact is that you are selling your client's cause at all times whether it be to the jury or to the claims adjuster.

Proper negotiation also required you to be a good listener, because more times than not, the claims adjuster or opposing counsel will actually tell you what you need to do to sell them on a higher value for your client's case. But you had to be listening, and showing them that you truly understood their position, had considered it, and had some ways to address their concerns, or at least point out some things they may not have considered. Showing the adjuster how come around to seeing your case value as reasonable was truly an art.

Today, however, there are many attorneys who have abandoned the art. Instead they play "demand-offer ping pong", with very little thought about the art of persuasion, but rather just getting an offer. And, unfortunately, this may be what leads to a technology like online settlements becoming attractive. The mere concept of computerized settlements shows how far we have gotten away from the role lawyers should play in the settlement process, because now it's merely a numbers game, and no longer a matter of professional skill and experience. Now it's a matter of trying to guess what the adjusters highest offer is, and whether you can live with it, instead of persuading them to increase that offer.

This past summer, I tried a "cyber settlement" because I wanted to see what it was like, and because the insurance carrier initiated it. I was largely unimpressed when the case didn't settle after two rounds of "ping pong" ( I like ping pong, but not with my client's rights on the line). After that lack of success with automated settlements, I called the adjuster, and sincerely asked her to "show me" how she had arrived at her evaluation of the case. After hearing her attempting to support her figure, I could tell she had not worked with the file as thoroughly as she needed to be where I needed her to be, so I asked her some questions in a way that made it appear I valued her efforts and her position (because I did), but also in a way that caused her to question her own evaluation without feeling embarrassed or too proud to admit it. I gave her a graceful out, without challenging her competence.

I then pointed out some things I had mentioned in my demand letter, which she didn't seem to factored into her evaluation, and pointed out how I would probably feel the same way she did if I hadn't factored these things into my evaluation. I then politely suggested that in light of the points she had raised, and the additional information we had discussed, that it was unfair to expect her to be in a position to fairly evaluate the case without an opportunity to consider the points we discussed, and that maybe we should give her the opportunity to review her file, and resume our discussions. She agreed, and thanked me for the suggestion.

Three days later, I received a call for her. I answered a question or two for her, listened to her new evaluation, and saw a $10,000 offer increased to $22,000. There is no way that would ever have happened in the automated process, because it simply doesn't afford the opportunity for the proper involvement of the lawyer as a professional.

Technology is a wonderful thing, but it's not a solution to every aspect of the practice of law. My goal is to promote technologies that allow lawyers to spend more time doing the things that a lawyer must do, like negotiating, counseling and comforting a client, preparing opening statements, witness examinations, and considering the effect the facts and the law have on the client's cause. But, I cannot endorse technologies that replace the lawyer's vital role in the legal process while adding no real value to the client.

Now, I am an open minded individual, so I am willing to recognize that there are going to be other perspectives out there, so I invite anyone who differs with me on this issue to write and let me know your position. I'll post any responses in a subsequent blog entry. You can submit your post to ggarnes@mylawtips.com.

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