Here are the key distinctions between the goals and limitations of questioning at trial versus at a deposition:
Questioning at trial:
- You’re trying to present legally admissible facts in a way that will persuade the trier of fact to find for your client.
- You can only ask questions that elicit specific relevant information (Evid C §350).
- Opposing counsel must make all appropriate objections.
Questioning at deposition:
- You’re seeking discovery, probing the extent of witness’ knowledge.
- You can ask questions that aren’t necessarily relevant but that may lead to the discovery of relevant evidence.
- Objections are unnecessary on the competence of the deponent, or the relevance, materiality, and admissibility at trial of the testimony or of the materials produced; however, objections on the grounds of privilege or attorney work product protection, or as to the form of the question, are waived unless made at the deposition.
Your primary goal at a deposition is to get information. Your secondary goal is to create a good record to be used to impeach or to refresh recollection at trial. Rarely, you may wish to approach the deponent in a strictly adversarial manner (e.g., to encourage settlement). But you’ll often prefer “gentle cross-examination,” because the purpose of a deposition is to ascertain facts and to “pin down” the witness to a story, not to give a preview of your cross-examination at trial, which would allow that witness time to repair holes in the initial testimony.
At trial, great cross-examination depends on preparation, and in civil cases the deposition is the key to preparation. The questions you ask in each setting is informed by applicable goals and legal restrictions. Keep these differences in mind to get the most out of each questioning opportunity.
For more tips on questioning skills generally, turn to CEB’s Effective Introduction of Evidence in California, chapter 1. On taking depositions, turn to CEB’s California Civil Discovery Practice, chapter 6. For practical guidance on questioning at trial, a must-have book is CEB’s Effective Direct and Cross-Examination.
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