Cal. Litig. 2017, Volume 30, Number 1

The Opening Statement For the Defense

By John C. Conti

Lawsuits typically proceed in three sequential phases: gathering, distilling and presenting. Gathering refers to the acquisition of the facts and data underlying the claim or defense and incorporates investigation, research, and discovery. In the distillation phase, the lawyer crafts the overall theme around which evidence will be organized and presented. This phase necessarily involves a good deal of judgment and demands a confident approach, since the honing of a central theme requires abandoning all extraneous information. In the presentation phase, the lawyer incorporates elements of theater and stagecraft, becoming the director of the play, making nuanced and detailed determinations about how each piece of evidence should be displayed and offered to the jury.

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Invoking a movie-making analogy, gathering equates to storyline research; distillation is analogous to drafting the screenplay; and the presentation phase mirrors the direction of the movie itself. The opening statement in this analogy is therefore the enticing and attention-grabbing movie preview.

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