Why the Upcoming Amendment to the Georgia Court of Appeals Rules is a Good Idea

Beginning on August 1, a single dissent in a three-judge Court of Appeals case will no longer remove its value as precedent for future cases, nor will one judge’s disagreement with the reasoning of the case. Here is the text of new Court of Appeals rule 33.2:

If an appeal is decided by a division of this Court or by the Court sitting en banc, a published opinion in which a majority of the judges fully concur in the rationale and judgment of the decision is binding precedent.

According to Chief Judge McFadden, “This rule change brings the Court of Appeals of Georgia in line with other federal and state intermediate appellate courts throughout the country. It will further our role in building and maintaining a clear and a consistent body of case law throughout the state.”

The new rule does not reverse a historic trend; rather, its reverses rule that had been in effect for just a few years when the legislature gave the Court the power to set its own rule regarding the establishment of precedent.

I do not think that the rule will effect any lawyer’s win/loss rate (though I will note that many of my wins have been with a concurring vote or a dissent), I think the rule change is good for two reasons.

  1. Most intermediate appellate courts do not require unanimity for cases to set precedent. Our court should function the way federal circuit court and the similar state courts around the nation.
  2. The close cases are the ones where we need precedent the most. Generally, when a panel is in complete agreement, the case is not close or is setting forth established law.

While some may be concerned with quality control with a case that is as busy as Georgia’s intermediate appellate court, the Court has the ability to issue non-published opinions to avoid a turn of phrase creating inadvertent precedent in a case that the panel saw as a restatement of established law.

One final note, the rule is not retroactive. So 2-1s and JO opinions from the past will not become precedent on August 1.

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