DUKE WELCH, 1ST CIRCUIT COURT OF APPEALS JUDGE, DISCUSSES THE DIFFERENCE BETWEEN TRIAL COURTS & THE COURT OF APPEALS | VIDEO TRANSCRIPT

Locke Meredith: Hello, I’m Locke Meredith. I’d like to invite you to join me on the next Legal Lines where the guest is Judge Duke Welch. He is a Judge for the 1st Circuit Court of Appeals and the Judge is going to talk to us about the difference between Trial Court and how it functions and the Appellate Courts and how they function. He is also going to talk to us about a good idea. That’s about putting video cameras into the court rooms, so we the public can watch how the Court system and Judicial system really works. So join us on the next Legal Lines with Judge Duke Welch.

Locke Meredith: Hello, welcome to Legal Lines, I’m Locke Meredith. I’m very pleased to have on the show Judge Duke Welch. He’s a Judge for The First Circuit Court of Appeals.

Judge, Thank you so much for being on the show.

Judge Duke Welch: My pleasure.

Locke Meredith: Good to have you back, as we discussed before you were the very first guest I had probably over ten years.

Judge Duke Welch: You know and I had the opportunity to look at our first interview and…

Locke Meredith: I bet we looked a lot better.

Judge Duke Welch: Well actually, we had a little less grey and me a little more hair.

Locke Meredith: Tell the folks a little bit about yourself you know educational background, family background so they can see where you come from.

Judge Duke Welch: I was born in Baton Rouge, grew up in Baker, and graduated from Baker High School. I went down during Vietnam and tried to join the Marines but I had a football injury so I ended up going in the Air Force for five and a half years and I loved that. I finished my undergraduate at the University of Maryland in Business Management. I got accepted to LSU Law School and got out of there. And the rest is kind of history.

Locke Meredith: Well you are also a politician in the sense that you were also on The Metro Council.

Judge Duke Welch: I’ve been in elected service for thirty years now. The day I graduated from Law School, I got elected to the Baker City Council. I served there for eight years and then when Mayor Rideau became Mayor, I took over his position at Metro Council for six and a half years. Then I ran for 19th Judicial Court, when they created the new seat in 1995. I have been a Judge for the last sixteen years.

Locke Meredith: Boy has the city of Baker grown.

Judge Duke Welch: It has, the changes in Baton Rouge are phenomenal. The whole Parish.

Locke Meredith: We had the District Attorney Hillar Moore in just a little while ago and we are talking about how fast, it’s the fastest growing area in Louisiana and of course crime has gone up and litigation has gone up and you’ve been there for all of it.

Judge Duke Welch: I certainly have and you know things have changed so much over time, and you know some things change and some things don’t. The crime issue in our Parish is a national issue and let me tell you what Locke, about ninety percent of that is drugs. Until we can wise up and figure out how to deal with that, even when we lock people up we have a seventy percent recidivism rate, so even when we are locking people up they are still addicted to drugs and when they go back on the street we are seeing them back.

Locke Meredith: It’s a cycle isn’t it?

Judge Duke Welch: It’s a terrible cycle. We’re seeing them back in the system and we just have to be smart and figure out some way to do that.

Locke Meredith: Of course he is seeing it on the front lines, you’ve seen it when you were a trial Judge and of course now you are seeing it on the Appellate level.

Judge Duke Welch: Well you know, the first two years when I was a District Court Judge I did nothing but criminal which was everything from a traffic ticket to capital crimes. I did death penalty cases. I’ve seen it first hand as well and seen a lot of the same people coming back through. It really breaks your heart.

Locke Meredith: What would you say based on your experience; you’ve been there a long time. What needs to change?

Judge Duke Welch: We have got to break the addiction cycle and that is so hard to do because you have the poverty element intertwined with the addictive nature. Our whole system of economics is based upon the age old theory that we will all do what is in our best interest economically. So you’ll go to school, get a job, you’ll work hard, do that; but when you get addicted the complete economic system breaks down because the primary goal is not money, it becomes the drug or the addiction.

Locke Meredith: Well, your son Trey is on the Council, the Metro Council. He’s following in his dads footsteps.

Judge Duke Welch: Well actually in his moms. I was on the Council for six years; she was on the Council for six years.

Locke Meredith: What would you say from a comprehensive view, because your family has been there, is still there, from a political legislative point of view how would you deal with it? Because really the Legal system, there isn’t much they are going to do differently.

Judge Duke Welch: Well, what’s so bad about the Legal System, Locke, is that it’s after the fact. It’s not proactive, we are reactive. When you do something and there is a law broken, and let me tell you what.

Locke Meredith: There’s mandatory sentencing isn’t there?

Judge Duke Welch: Exactly, in many cases there is mandatory sentencing. We in Louisiana have the highest incarceration rate of any State in the Country. And we have, The United States has the highest incarceration rate of any nation in the World. We’ve got to be smarter about what we do with people who break the law and how we get them back into the fold so to speak.

Locke Meredith: In my head there’s like three groups. There’s the kids that are susceptible to that world, and they are at risk and we can try and deal with them. We’ve got the folks that are in the system and I guess we can try and educate them and give them skill sets that once they get out of the prisons they don’t have to go back to it. And then there is the group that has gotten out of the prison system. Is there some type of follow up? What do you do with that?

Judge Duke Welch: There are systems, upon systems, upon systems and I hate to say this but with the circumstances we are in it just doesn’t seem to be working very well.

Locke Meredith: The money isn’t there to do.

Judge Duke Welch: No, its millions and millions of dollars that are put into incarceration, into rehabs, into all types of systems. Skill sets, and labor and job training, all those funds are there to try and give people an alternative. Once an individual in their mind, turns, and becomes addicted at that point in time it’s out the window. In the programs we have now, none of them have shown to be very effective in dealing with that.

Locke Meredith: That sounds like it is going to require some kind of medical, psychological or psychiatric component.

Judge Duke Welch: I tell you what; if you and I had the answer we would do a lot of good.

Locke Meredith: Judge lets talk about the Inns of Court because not many people know what it is. You are the President of the Inns of Court here in Baton Rouge. Recently received from the United States Supreme Court Justice Clarence Thomas, the award. Explain to us what it is.

Judge Duke Welch: Well the Inns of Court came from England and it was a group of Lawyers that would get together and they would talk about professionalism, they would talk about excellence in the practice of law and they would talk about ethics and how they would make the community better. So the Inns of Court concept has come to this country and there are about three hundred and sixty Inns in the United States. We have three in Baton Rouge and I’m very proud to be the President of the Dean Henry George McMahon. We were selected for the platinum award of excellence last year and I decide receive our reward for our whole Inn, who we have some tremendous people involved. We are one of the top fifteen Inns in the whole United States.

Locke Meredith: And it brings together Lawyers and Judges both on the State and Federal level and local Politicians?

Judge Duke Welch: Yes. Anyone who is a Lawyer can be a member of it and then we also bring in the law students. So we try to get them early and get them involved.

Locke Meredith: Fantastic program. Well we will continue this on the next segment of Legal Lines. I’m Locke Meredith with Judge Duke Welch. We’ll be right back.

 

Locke Meredith: Welcome back to Legal Lines, I’m Locke Meredith and again we are very pleased to have on the show today Judge Duke Welch. He is a Judge for The First Circuit Court of Appeals. Again, Judge thank you for being on the show.

Judge Duke Welch: So nice to be with you today.

Locke Meredith: Let’s talk about the difference between a Trial Court Judge, an Appellate Court Judge and a Supreme Court Judge, if you don’t mind.

Judge Duke Welch: No, I don’t mind at all.

Locke Meredith: You’ve been a Trial Court Judge for how many years?

Judge Duke Welch: I was a Trial Court Judge for ten years. I’ve been on The Court of Appeals for six years.

Locke Meredith: Ok, that’s a ten year term for The Appellate Court?

Judge Duke Welch: Correct, and I was Lawyer for thirteen years. So in the legal profession I have had three different careers.

Locke Meredith: So let’s talk about the job duties so to speak, of a Trial Judge.

Judge Duke Welch: Well a Trial Judge is a very, very important job because when you go before, for instance the nineteenth Judicial, whether its traffic court. The Trial Judge makes a determination of who is telling the truth and often times you never have a dispute unless there is a fact and then its like was the light red, or was it green. Did you do this, or didn’t you do that. That kind of thing or were you speeding or not speeding. The Trial Judge is the one that listens to everything and decides who he or she believes. That is a very, very important job and it takes a lot of skill.

 

Locke Meredith: And it’s on the front line.

Judge Duke Welch: It’s on the front line and it’s the closest to the people and that Judge is primarily focusing on the justice of the case that is before him or her. Another word that one Judge is trying to make a determination based upon the facts as they find them and the law that is applicable. That is a very, very important function.

Locke Meredith: And there is not very much discretion giving to the Judge or Jury in that act.

Judge Duke Welch: The Judge can find the facts or the Jury, if it’s a jury trial, who they believe and who they don’t believe but once that determination is made then that becomes the law pretty much. Now in Louisiana, you have, we are one of the only states that you have an Appellate review of facts but that is so very limited. So once the Trial Judge generally makes up his mind as to where the truth lies that generally becomes the law.

Locke Meredith: So for example if The Judge says, I believe witness A, I do not believe witness B, The Appellate Court is not going to reverse that.

Judge Duke Welch: No, The Appellate Court is not going to reverse that at all, except if there are thirty people that say witness A didn’t have the green light and witness B had it and the Trial Judge said I believe witness B then The Appellate Court may look at that and can look at that. And there’s been a lot of debate over whether or not that should be, but it is a fact, we can do that.

Locke Meredith: And as you stated, most states don’t permit that.

Judge Duke Welch: Most States do not allow Appellate review of facts.

Locke Meredith: But the standard of review for that determination by the Appellate Court is called what?

Judge Duke Welch: That’s manifest error.

Locke Meredith: Like you said, it takes thirty people saying…

Judge Duke Welch: It’s going to take a whole lot of people over here as opposed to over there saying, to overrule that Trial Judge.

Locke Meredith: So basically, The Trial Judge, Jury, is going to determine what the facts were, apply the law.

Judge Duke Welch: Correct. The Judge is going to apply the law to those facts.

Locke Meredith: And then what happens?

Judge Duke Welch: And then there becomes a judgment. And that judgment decrees the rights, obligations and duties between the party in that case.

Locke Meredith: Now, there’s what’s called a record.

Judge Duke Welch: Correct.

Locke Meredith: Explain to the folks what that is.

Judge Duke Welch: A record is made when you walk into the court room and somebody swears in there’s a court reporter up there that transcribes everything. A record is made of everything that is said in the court room. Also a record is made of all the exhibits that are introduced and that becomes the record of the case.

Locke Meredith: The records could be photographs, they could be medical records, and they could be any number of things.

Judge Duke Welch: Exhibits, whatever is entered into the trial and The Trial Judge allows into the record. That becomes the record along with the transcript of what was said.

Locke Meredith: The reason it comes in is because that is what The Judge looked at to help decide what the facts were.

Judge Duke Welch: Exactly right. Now there may be some things that the Judge excluded, those are proffered.

Locke Meredith: Explain to the folks what that means.

Judge Duke Welch: It means its not an official part of the record but one of the Attorneys, for one reason or another believes it should be admitted, the Trial Judge has disallowed it but will allow The Court of Appeal to look at it but it is not part of the Judges Fact finding.

Locke Meredith: And so if it is a Jury trial, the jury never even sees it.

Judge Duke Welch: No, the Jury never sees the proffer.

Locke Meredith: And the reason the record is so important is why?

Judge Duke Welch: The reason why the record is important is because if either party, and sometimes both parties, don’t like what happened at the Trial Court level, they have a right to appeal it to a Court of Appeal. That’s where in Louisiana we have five Courts of Appeal.

Locke Meredith: And to summarize it, I think of it as the Trial Court is where you go and throw everything in the box, call it the record box. Whether its tires, or records or whatever and that’s what was considered by the Trial Court and then the parties, either one or both, don’t like it that box is shipped over to the Court of Appeal.

Judge Duke Welch: Exactly. Everything is transcribed by the Court Reporter. The evidence is accumulated, and it is then delivered to the Court House.

Locke Meredith: Now before the parties appeal a decision, there is actually a couple of motions they can file to try and get the Judge to do something different.

Judge Duke Welch: Absolutely right. They can ask the Judge to entertain a motion for a new trial.

Locke Meredith: Which means what?

Judge Duke Welch: A new trial means, Judge this is just wrong. We want you to look at it because you were here. For example a Jury trial. You were here, you saw the evidence, and there’s no way the jurors should’ve come up with this and we want you to look at it. Or if the Judge tried it, then say “Judge look we think you might have been having a bad day wont you look at this one more time.” The Judge does have the discretion to do that. Then we have the judgment not withstanding the verdict, which is; there’s no way any sane people could have come up with this verdict and therefore we want you to overturn it.

Locke Meredith: And then there would be one more motion that would deal with the amount of damages that was awarded. Which could be for a reduction or increase?

Judge Duke Welch: It could be for an increase, remitature to take away damages or an additure which would add damages.

Locke Meredith: So bottom line if either party or both don’t like what the Trial Court finds and renders, they appeal it. They have certain delays, explain that to the folks.

Judge Duke Welch: If for example and individual has a judgment and a certain amount of money is toward it. Lets say fifty thousand dollars, and the judgment is party A, you pay party B fifty thousand dollars. You can file two types of appeal. The first type is called a suspensive  appeal and it has to be filed within thirty days. That is where you cant collect on that until its reviewed by The Court of Appeals.

Locke Meredith: So in essence, the impact of the judgment is suspended.

Judge Duke Welch: Exactly. Then there is another type of appeal called the Devolutive Appeal. Which really means the judgment stands but The Court of Appeal will look at it anyway.

Locke Meredith: So if I got a judgment for damages they could actually go out and start seizing assets.

Judge Duke Welch: And once the suspensive appeals delays ran out they could go out and start collecting.

Locke Meredith: We’ll continue this on the next segment of Legal Lines with Judge Duke Welch. We’ll be right back.

 

Locke Meredith: Welcome back to Legal Lines, I’m Locke Meredith and again I am very pleased to have on the show today Judge Duke Welch. He is a First Circuit Court of Appeal Judge. Again, thanks for being on the show.

Judge Duke Welch: I love being here with you Locke.

Locke Meredith: Lets see, we talked about the Trial Court and basically how it works. We’ve talked about how you create this box which is all the evidence that you collected and its shipped over to The Appellate Court. What does The Appellate Court do?

Judge Duke Welch: Okay, what the Appellate Court does is this. It requires the Lawyers to file briefs. In another words the Lawyer that lost is calling on The Appellate and they explain to us why they shouldn’t have lost. They do that in a brief. Then the other side answers that and says what was found was just fine. So the job of The Appellate Court, we sit in panels of three Judges. At a minimum, three Judges, some times five, sometimes seven and then sometimes twelve. We will review what happened below and what we are looking for is not so much factual issues but what we are looking for is mistakes of law. Was there a mistake of law made at the lower level that caused the trial to be unfair or unjust?

Locke Meredith: And of course there are no witnesses, or any new introduction of documents or anything like that.

Judge Duke Welch: No.

Locke Meredith: If it is not in the box at The Trial Court,  it is not getting in the box at The Appellate Court.

Judge Duke Welch: It’s not getting in the box at The Appellate record. And it’s a cold record. Another words, we are reading the testimony, we are not looking at the people and we are not deciding who was telling the truth. We are just looking to see what was said to the Trial Court.

Locke Meredith: Typically there will be what is called the oral argument. Explain to the folks what that is.

Judge Duke Welch: If a Lawyer chooses to have an oral argument and they filed their brief timely, they have the right to come in front of the panel that their case is assigned to and argue about the point of law that they think the mistakes were made or the answer to that. The Paul Harvey, other side to the story, and why it was correct.

 

Locke Meredith: Of course, the Judges kind of get involved don’t they.

Judge Duke Welch: The Judges immediately and most of them I know and have been on panels with, the Lawyers just don’t get to read their briefs. They will ask specific questions about the cases they have cited, about the law that was applied, exactly what relief they are asking for and why they think they should be entitled to the relief they are seeking.

Locke Meredith: Judge, you mentioned when we were discussing the trial court that the Judge is focused on that specific case. That implies to me at The Appellate Court that the view is a little bit broader because you are dealing more with the application of law. Is that right?

Judge Duke Welch: It is absolutely right Locke. That is such an important distinction because our cases are reported. They are written down and they are reported in the law and law books. In another similar case that the facts are the same, the Lawyers will cite this case or the finding in this case to support another factual finding in that case. The Appellate Courts have to look at not only the justice in this case but if we say this, how is it going to effect every other similar case. It’s a really important responsibility.

Locke Meredith: And of course, in the real world those cases guide settlement discussions down at the Trial Court level. Because if the parties can figure out what is going to happen at The Appellate Court level they are going to settle the case.

Judge Duke Welch: They certainly can. Once we make a decision about a particular factual situation and what the law is under those facts, we are bound by that unless we get together unanimously and overrule that.

Locke Meredith: Let’s explain to the folks. You talked about how there might be a panel of three, five, seven, and nine. How does that take place?

Judge Duke Welch: Well, what happens is that in a civil case, The Trial Judge is considered an Appellate Court Judge for Appellate purposes. It takes three Appellate Judges to overrule a Civil Trial Judge. So if the Trial Judge makes a ruling and two of the three Appellate Judges think the Trial Judge was wrong, but one Appellate Judge thinks the Trial Judge was right then you have four to four. We go get two more Judges, randomly assigned to look at the case. Then its completely reargued again.

Locke Meredith: And the panel of Judges grows larger because of the different positions?

Judge Duke Welch: Correct. There may be different issues. One particular case may have four or five different issues on it. Sometimes we will go to a panel of seven. If it’s a very important case or we went to overrule past First Circuit case law then all twelve Judges will sit and get together and make a determination on whether it should be overruled.

Locke Meredith: Now a Judge can agree with the decision or remand it back down, reverse the decision. A Judge can concur, descend. Explain what those terms mean.

Judge Duke Welch: What that means is that if the Judges agree then we agree.  Sometimes we will agree with the result but we don’t agree with what was written about it so we concur. Meaning we agree with the result, but the reasons given we don’t quite agree with. Then sometimes we will say reverse, which means we don’t agree, we will render, which means we will take the record and issue a new judgment.

Locke Meredith: And how many Judges out of that panel have to agree with that action?

Judge Duke Welch: It depends, to reverse, it would take three Judges. So we can render, we can send it back if we feel a new trial is warranted or sentencing or something like that. We can send it back to The Trial Court and have them do that.

Locke Meredith: Judge let’s talk about a very interesting concept that it is being contemplated regarding putting video cameras in the court room.

Judge Duke Welch: Not video cameras so much, but live video feed. In the Louisiana Supreme Court, over the last two years, every oral argument is streamed live via the internet. You can tune in and watch the Lawyers, The Justices, the questions they ask and its been amazing the great response that has. We are trying to and I would like to get a live video feed in every Appellate Court and every Civil District court room. So that the public could tune in. If you had a trial with Judge X and you wanted to see what a trial with Judge X is like, you don’t have to talk to your Lawyer about it, you can watch Judge X via the internet. Also, the openness of the legal system, demystifying it. Allow people to look, allow people to watch what goes on.

Locke Meredith: Judge, what caused you to contemplate doing this?

Judge Duke Welch: Well there have been some attacks on the Judicial System, The Louisiana Judicial System, from the U.S Chamber of Commerce that says we are not so good. Its based on hear say that’s based upon people who say they have been in the Louisiana Courts. Why don’t we allow people to see what goes on? We have great Judges, we have great Lawyers doing good work for people in every court room in this State. Why don’t we showcase that? Why don’t we let people see that and not take somebody else’s word for it?  Why don’t we let the public see?

Locke Meredith: So what has to happen for that to take place? Does The Supreme Court have to okay it?

Judge Duke Welch: Yes. That would have to be blessed by The Supreme Court and we are hoping they will.

Locke Meredith: And if they are doing it, it sure seems like they would.

Judge Duke Welch: We hope so.

Locke Meredith: Judge, Thank you so much for being on the show again.

Judge Duke Welch: Thanks for having me.

Locke Meredith: This is Legal Lines, Locke Meredith with Judge Duke Welch, First Circuit Court of Appeals. Thank you for being with us today.

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