The Clarity of Court-House Steps: Empowering Clients to Settle.

There is a particular quality of light in the corridor outside a courtroom on the morning of a trial. It is neither kind nor unkind. It is simply the light that exists when things are about to become real.

I have stood in that corridor more times than I can count. And more times than people would expect, something happens there — something that does not make the case reports, does not appear in any judgment, and will never be cited as precedent. Parties who have spent months, sometimes years, in open conflict somehow find a way to end it. On the steps. In the corridor. In a hushed conference room that smells faintly of espresso and anxiety.

It is one of the more peculiar privileges of this work, and I have been thinking lately about what it actually means.

By the time a barrister is briefed for trial in a family law matter, a great deal has already happened. A solicitor - often an extraordinarily skilled one - has carried the file through the whole arc of the litigation. Disclosure, correspondence, interim hearings, mediation attempts, failed negotiations. They know the client. They know the case. And yet here we are: still no agreement. Still standing on the edge of something uncertain and expensive and bruising.

So why does it sometimes shift when a barrister arrives?

I don't think it is because barristers are more clever, or more persuasive, or better acquainted with the law. Usually we're not. The solicitor who has lived with the file for eighteen months will know its textures in ways I am only beginning to grasp on the morning of the hearing.

I think it shifts because of something else entirely.

A barrister arriving fresh, the night before or the morning of, brings a particular kind of clarity - not because we are detached, but because we have had no choice but to look at the whole picture at once. We have the benefit of that whole-picture perspective, often when more compelling evidence tends to trickle in over the weeks or days leading up to trial. We have read every document with the specific question in mind: will this hold up? We have had to think like the other side, like the judge, like someone with no emotional investment in the outcome at all. We have had to play devil's advocate, rigorously, because any barrister who hasn't genuinely interrogated their own client's case is a useless one.

And sometimes - often - that process yields a different answer than the one the client has been living with.

I want to be careful here, because there is a version of what I am describing that is coercive, and I have a deep aversion to it.

Clients sometimes come to me having worked with other counsel, and they will say - quietly, a little wearily - that they felt pressured into agreeing to something. That the advice they received felt less like guidance and more like a door closing. Some of them went along with it and still carry the weight of that. Some of them pushed back, the matter returned to court, and they arrived even more jaded, more certain that the system was simply another space in which they had no real voice.

That is a failure. And I think about it often.

The goal - my goal, the only version of this work I can do with any integrity - is for a client to feel that the decision was theirs. Not that I coaxed them toward it. Not that I wore them down. Theirs. Genuinely, meaningfully theirs.

That requires something more demanding than persuasion. It requires that a client feel truly heard before they are asked to consider a different path. Because if someone does not feel heard, they cannot think. They can only defend. And in family law, almost every client arrives in some state of defence - against the other party, against the system, sometimes against their own grief.

I always acknowledge that first. The hurt is real. The sense of injustice is frequently entirely valid. There is no version of my advice that dismisses it. I have no interest in telling a client they are wrong to feel the way they feel, because they are almost never wrong about that. The feelings are always legitimate. It is the strategy that sometimes needs to change.

Here is the honest part.

When a client's case is weak - whether in fact, in law, or both - I will be firm. I will encourage settlement, clearly, and I will not pretend otherwise. But I will only do so when I genuinely believe, having considered everything, that it is the better option. I approach every case with the end in mind: what will the court actually do? Not what should it do, not what justice demands in some ideal sense - what will it do, on these facts, before this judicial officer, with this evidence?

If that analysis does not favour my client, they deserve to know. And they deserve to know in a way that respects their intelligence and doesn't reduce them to a problem to be managed.

What I try to convey - and what is genuinely difficult to convey to someone who has never experienced it - is what cross-examination actually feels like from the witness box.

I love cross-examination. I say this without apology, because it is one of the genuine pleasures of advocacy. It is an art form, a skill, and I believe I am very good at it. But I would never, ever want to be on the receiving end of it. And neither would any of my clients, if they truly understood what was coming.

This is something I have to be honest about. Cross-examination in family law is not about twisting words or theatrical courtroom tricks. Courts are not impressed by that, and neither am I. What it is about - what I am specifically looking for when I cross-examine a witness - is insight. Or more precisely, the absence of it. The inability to see one's own situation with any objectivity. The way hurt and certainty can fuse into something that looks, from the outside, very different to how it feels from the inside.

Every family law litigant suffers from this to some degree. It is not a character flaw. It is the inevitable consequence of being a human being in the middle of an extraordinarily painful experience. But it is exactly what a skilled cross-examiner will find and illuminate, patiently and relentlessly, in front of a judge and in front of a former spouse. It is deeply unpleasant.

Of course, most of the briefs that land on my desk are fairly solid cases, and in those circumstances there are really very limited alternatives; we'll have to run the gauntlet. In those cases, cross-examination is generally less torturous for those clients, but torturous nonetheless.

I have not had a single client who stepped down from the witness box feeling good about themselves. Not one. Even the ones who held up relatively well, it frequently comes as a shock - even to clients who were certain they would be fine (especially those clients), because they had, as they put it, nothing to hide. That is not really the point, and the experience of discovering that is rarely a comfortable one.

In more recent years, I have started doing something that feels almost unkind in the moment, even though I believe it is the kindest thing I can do.

When a client is insistent - when they are determined to have their day in court, convinced they will hold up, dismissive of my concerns - I usually cross-examine them myself. A preview. A small window into what is coming.

It is uncomfortable for me. I have spent time building trust with this person. I am on their side. Switching into that mode, even briefly, even in service of their interests, requires something I can only describe as a professional gear-change - a skill I can call on, but one that sits uneasily alongside the relationship I have tried to build with them.

But it is usually illuminating.

And still - here is the part I sit with - there is a cost to all of this.

Even when a client settles. Even when they settle freely, knowingly, with full understanding of the alternative. Even when they are relieved, in the car park afterwards, that it is over. Even then, there is a version of that moment that may stay with them: I wonder what would have happened.

They will never know. That is the nature of the path not taken. And if, in six months or two years, they are unhappy with the outcome they agreed to - and sometimes they will be - they may wonder whether they should have pushed on. Whether I was wrong. Whether they gave up something they could have won.

I cannot take that uncertainty away from them. I can only try to do enough, in that corridor, in that conference room, in the particular quality of that morning light, to make sure they feel that the decision was genuinely theirs. That they understood what they were agreeing to and why. That they were not talked into it, or frightened into it, or simply worn down by a process that is already exhausting.

I want them to be able to look back and say: I knew what I was doing. Someone made sure of that.

Whether I always succeed, I cannot say with certainty. But it is what I am trying for, every time.

And perhaps that is all any of us can offer: the genuine effort to serve a client's best interests, even when - especially when - those interests and their wishes are not quite the same thing. To hold that tension with honesty and care. To know the difference between empowering someone and overpowering them.

It is a difficult balance. I do not always find it perfectly. But I keep looking for it, in the corridor, in the light, on the steps.

By Ashleigh Morris, Family Law Barrister at Victorian Bar.

For briefing enquiries, please email a.morris@vicbar.com.au or contact Patterson's List on 03 9225 7888.