The judge decides which version of events i.e. narrative is to be preferred. The function of an advocate is to persuade the decision maker that his client’s narrative is to be preferred. Since the advocate was not present at the time of the alleged events, logically he cannot hold a view about the truth of his client’s narrative based upon personal knowledge. So, there is always a litigation risk that the judge may not believe his client. Therefore an advocate who is bullish in mediation about the merits of his client’s case is not being realistic about litigation risk, because there is litigation risk in every case. Is this correct?

At any hearing/trial, the Judge acts as the ultimate arbiter of fact. Their job is to weigh competing evidence, assess witness credibility, and decide which narrative is more probable. Because the judge has the final say, no outcome is ever 100% guaranteed, no matter how strong a case appears on paper.

Under procedural and ethical rules, an advocate is a representative, not a witness. The advocate has no firsthand knowledge of the events. They are working entirely with ‘second-hand’ information – client statements, documents, and expert reports. Because an advocate cannot truly know the absolute truth of what happened, they cannot perfectly predict how a third party (the judge) will interpret that same information.

In law, litigation risk is an absolute constant. It exists in every single case due to variables that cannot be controlled:

• Witness Performance: A client or key witness who seems convincing in an office might perform poorly under aggressive cross-examination.
• Judicial Discretion: Judges are human. They bring their own professional experiences and interpretations to the law and evidence, which can lead to unpredictable rulings.
• Evidentiary Surprises: New evidence can emerge, or existing evidence can be excluded by procedural rulings.

Mediation is designed to be a realistic assessment of risk to find a compromise. When an advocate is overly bullish during mediation, they are often engaging in posturing or adversarial theatre rather than an objective evaluation.

While puffery is a common negotiation tactic to drive a better settlement, an advocate who genuinely believes their own hype – and fails to advise their client about the inherent litigation risks, is failing to provide realistic counsel. A skilled advocate understands that the main reason to settle in mediation is precisely to eliminate the inherent, unpredictable risk of letting a judge decide.

Overconfidence blinds professionals to the weaknesses in their own arguments and the strengths of the opposing side’s position. In legal and dispute resolution contexts, this cognitive bias leads to critical failures across advocacy, negotiation, and mediation.