A car collision leads to a personal injury lawsuit. The case proceeds to trial. The defendant’s attorney wants to introduce certain medical records that federal law protects. The court excludes the records before trial begins. The attorney proceeds anyway. Over the course of two weeks, he references the excluded records thirty-eight times. He criticizes the privilege. He accuses the plaintiff of hiding information from the jury. He continues despite repeated objections and court orders to stop.
Similar scenarios play out regularly in probate litigation. A will contest proceeds to trial. One side wants to introduce the decedent’s psychiatric records to prove lack of capacity. The court excludes them based on physician-patient privilege. Counsel then spends the trial asking witnesses hypothetical questions based on the excluded records. He tells the jury the opposing party is hiding the truth. He argues they could consent to admission if they wanted to be honest. The privilege protections crumble under the weight of repeated violations.
What happens when an attorney repeatedly and deliberately violates these basic principles? Can a pattern of misconduct become so egregious that it denies the opposing party a fair trial? The case of Burdick v. York Oil Co., 364 S.W.2d 766 (Tex. Civ. App.—San Antonio 1963, writ ref’d n.r.e.), provides an opportunity to examine these questions.
Facts & Procedural History
Hope sued York Oil Company for damages to his neck suffered in a collision. The driver of York Oil Company’s car ran into the rear of Hope’s car. Evidence existed that would support a verdict either way. The trial lasted two weeks. The statement of facts consisted of 1,196 pages.
Before the court began hearing evidence, Hope made a motion in limine to exclude matters contained in Veterans Administration records. The court excluded the records because defendants failed to overcome the requirements of the federal privilege statute. Federal law protects Veterans Administration records from disclosure without proper authorization.
Despite that decision, defense counsel Tom Alexander commenced what the appellate court described as “a studied and successful course of questioning about those records.” He repeatedly criticized the privilege. He charged Hope with concealing matters from the jury. The effect was that the protection of the privilege was destroyed. This was accomplished not by indirection or an inadvertent mistake. It was the calculated theory of trial.
Defense counsel began during cross-examination of the first witness. He turned to the courtroom and addressed the custodian of the Veterans Administration records. He said, “I am going to ask Mr. Montemayor from the Veterans Administration to hold up that sheaf of records on Hope Burdick.” The court ordered the remark stricken.
Counsel then asked the witness hypothetical questions based on information from the excluded records. He asked, “Suppose though, Doctor, that the history was from the Veterans Administration records that this was a man that shot himself in the leg twice in the service.” Upon objection, counsel volunteered the statement, “I certainly intend to show by the Veterans Administration records and by Mr. Burdick himself he was under indictment.” This later proved to be a false statement.
Counsel continued asking questions about the excluded records. He asked whether it would have been important for the doctor to consult and read the Veterans Administration records. When Hope invoked the federal privilege statute, counsel incorrectly stated that there was no such statute. He asked the witness, “If Mr. Burdick and his lawyers would give you permission you can sit here during the noon hour and read through those Veterans Administration records. If they give you that permission will you do that?” Objections were again sustained.
After the noon recess of the first day, defense counsel called the Veterans Administration attorney out of order. The records were again excluded. Counsel then began a series of questions designed to criticize Hope for invoking the privilege. He asked whether the witness had ever had attorneys for the plaintiff refuse to give consent to have records admitted before the jury. He asked whether the witness understood that there would be no question about admitting these records before the jury. He emphasized, “You do understand here the reason that these records have not been admitted to this jury is because the plaintiff’s attorney refuses to allow the jury to see these records?”
On the third day of trial, counsel asked Hope directly: “You know, don’t you, all we need to get the whole Veterans Administration file in evidence is your consent? Will you consent putting that file in evidence so that the matter can be straightened up before the jury and the court?” When the privilege was again claimed, counsel stated, “There is no law that says he can’t consent to admit these records.”
This pattern continued throughout the trial. Counsel referenced the excluded records on multiple occasions each day. He offered them into evidence repeatedly. He criticized Hope and his attorneys for invoking the privilege. He made side comments to the jury about the records.
The jury answered all issues against Hope. He appealed. The appellate court reversed based on defense counsel’s systematic injection of excluded evidence into the trial record.
The Rules Governing Motions in Limine and Excluded Evidence
A motion in limine is a request that the court exclude anticipated evidence before trial begins. The practice allows parties to obtain rulings on evidentiary issues without exposing the jury to improper matters. Texas courts have long approved this procedure.
When the court has ruled on a point, the same evidence should not again be offered in the presence of the jury. This principle protects the integrity of court rulings and ensures that juries decide cases based only on admissible evidence. Counsel may continue to urge upon the court, out of the hearing of the jury, the correctness of his position for as long as the judge permits. However, the presentation of excluded matter to the jury by suggestion, by the wording of a question, or by indirection violates professional standards and counsel’s duty to the court.
Matters excluded by reason of a lawful privilege are governed by the same rules. Having claimed a privilege, one need not see it frittered away by repetitious re-offers of the same evidence. Claimants need not justify their reasons for invoking the privilege in front of the jury. The privilege itself provides the justification. Forcing claimants to defend their invocation of the privilege before the jury undermines the very purpose of having privileges in the first place.
When error creeps into the record, the court should instruct the jury to disregard it. A single inadvertent reference to excluded material may be cured by such an instruction. Courts presume that juries follow instructions to disregard improper matters. However, this presumption has limits. When counsel repeatedly and deliberately violates court orders, instructions to disregard become inadequate to cure the harm.
How Defense Counsel Violated These Basic Principles
The appellate court detailed thirty-eight times that counsel disregarded the court’s rulings and instructions. He did it in multiple forms. He made factual statements about the excluded records. He asked suggestive or repetitious questions. He argued to the court in front of the jury. He made side-bar remarks. He continued through jury argument.
His conduct included criticisms of Hope for claiming the privilege. He criticized Hope’s counsel. He criticized the court. He criticized the rule of law protecting the records. It began with the first witness. It continued through the argument at the end of the two-week trial.
During jury argument, counsel ignored the court’s over-patient and numerous orders. He told the jury, “Ladies and Gentlemen, these things I say to you about matters that have been objected to and kept out of the record, I don’t mean to say it is positive evidence those things happened, but you Ladies and Gentlemen, as you can read from the Court’s charge, are entitled to consider also circumstantial evidence and to draw whatever reasonable inferences you can draw from the evidence that is in the record.”
He argued, “They have kept the Veterans Administration records out and now they are talking about what is in them and they will reflect that.” He told the jury, “Do you want to let the Veterans Records in? He has been in court more than one day and if you want to put the records in, put them in.”
Counsel then crowned all his former disregard for the rules of evidence and the court’s rulings by arguing: “Ladies and Gentlemen, in that regard I have a peculiar advantage over you because I know what is in those Veterans records and I know why he has taken that position about them because he knows he can keep them out.”
He continued: “The reason they are not in this record is because of personal privilege like the Fifth Amendment has been invoked here.” He told the jury, “The law says when you invoke a personal privilege or take the Fifth Amendment the jury is entitled to hear the person invoking such privilege take the stand and so state.” He concluded, “You know when a man takes the Fifth Amendment, the jury is entitled to hear him take the Fifth Amendment.”
How These Principles Apply to Probate Litigation
The lessons from Burdick apply with equal force to probate litigation. Will contests, disputes over estate administration, and battles between heirs often involve privileged information that attorneys may be tempted to reference improperly. The emotional nature of probate disputes—family members fighting over a deceased loved one’s estate—can make the temptation to bend the rules even stronger.
For example, probate cases frequently involve medical records protected by physician-patient privilege. When a will contest alleges lack of testamentary capacity, the decedent’s medical records become highly relevant. However, the physician-patient privilege survives the patient’s death in Texas. Contestants must establish proper exceptions to the privilege before introducing medical records. An attorney who repeatedly references excluded medical records despite court orders commits the same misconduct the court condemned in Burdick.
Consider a will contest where the proponent seeks to introduce the decedent’s psychiatric records to prove testamentary capacity. The contestant objects based on physician-patient privilege. The court excludes the records. If proponent’s counsel then spends two weeks asking witnesses hypothetical questions based on information from the excluded records, telling the jury that contestant is hiding the truth, and arguing that contestant could consent to admission if he wanted to be honest with the jury, counsel has committed the same misconduct that led to reversal in Burdick.
Attorney-client privilege issues also arise regularly in other types of probate litigation. Communications between the decedent and the attorney who drafted the will are typically privileged. Contestants sometimes argue that exceptions apply, such as the testamentary exception or the fiduciary exception. When the court rules against admissibility, counsel must respect that ruling. Suggesting through questions or argument what those privileged communications contained violates the court’s orders and professional standards.
Financial records present another common battleground in probate disputes. When disputes arise over whether an executor properly managed estate assets, bank records and investment statements become relevant. However, various privacy statutes may protect these records. When courts exclude certain financial information, attorneys cannot circumvent those rulings through suggestive questioning.
What Duties Do Trial Courts Have to Enforce Their Rulings?
The appellate court emphasized that trial judges have duties beyond simply ruling on objections. There is a duty upon the court to rule decisively. When error creeps into the record, the court should instruct the jury to disregard it. But the judge must do more. He must enforce his rulings.
Violations of a court’s solemn rulings should lead to serious consequences. The court’s attention was invited to Rule 269(g) of the Texas Rules of Civil Procedure. This rule addresses contempt of court and provides mechanisms for judges to enforce their orders.
The trial court in this case sustained objections repeatedly. The court ordered remarks stricken. The court instructed the jury to disregard improper matters. However, these measures proved inadequate when faced with counsel’s systematic and deliberate campaign to violate the court’s orders.
At some point, instructions to disregard become meaningless. When counsel references excluded matters thirty-eight times over two weeks despite repeated court orders to stop, the jury cannot possibly follow instructions to disregard. The excluded information has been so thoroughly woven into the trial that separating it from proper evidence becomes impossible.
The Takeaway
Will contests and disputes over estate administration often involve highly sensitive privileged information. Medical records protected by physician-patient privilege become relevant when testamentary capacity is challenged. Attorney-client communications regarding will preparation may be sought despite privilege protections. Financial records protected by privacy statutes become targets in disputes over estate management. The emotional nature of family disputes over a deceased loved one’s estate can tempt attorneys to exploit every perceived advantage. Those litigating probate disputes have to keep this in mind. Repeatedly violating court orders excluding privileged information does not serve the client’s interests when it leads to reversal on appeal.
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