Christopher McFadden, Chief Judge, Georgia Court of Appeals.

The Georgia Court of Appeals is about to make a small rule change that appellate lawyers say makes a big difference to them.

The rule is about what constitutes binding precedent. Currently, if one member of a three-judge panel dissents, then the decision affects only the case at hand and not others in the future. The same applies if one member concurs in judgement only without endorsing the reasoning.

That changes Aug. 1 with an updated Rule 33.2 for "judgement as precedent." It will mean that a single dissent in a three-judge panel will no longer remove the decision's value as precedent for future cases, nor will one judge's disagreement with the reasoning.

"This rule change brings the Court of Appeals of Georgia in line with other federal and state intermediate appellate courts throughout the country," Chief Judge Christopher J. McFadden of the Court of Appeals said in a written statement. "It will further our role in building and maintaining a clear and a consistent body of case law throughout the state."

"It's a huge deal to us," Brandon Bullard, 2020 chair of the State Bar of Georgia appellate practice law section, told the Daily Report in an interview. "If you are an appellate practitioner in this state, this is a game changer."

It's also important to all trial judges and even out-of-state lawyers, Bullard said.

"Up to now, 2–1 panel decisions from the Court of Appeals were not binding precedent—regardless of whether the third vote was a dissent, a special concurrence, or a concurrence in judgment only. Any less-than-unanimous panel decision was not the law of the state," Bullard said. "The primary consequence of that arcane Georgia rule was a lack of clarity: Lawyers whose cases involved issues earlier agreed upon by two (but not three) appellate judges could not rely on a certain rule, or even be confident that the issue would be resolved the same way a second time around. Worse still, the Court of Appeals could have resolved the same issue in different ways in different decisions, neither of which would be binding."

The new rule does pose a "trap for the unwary," Bullard said. It's not retroactive. That means 2-1 panel decisions before Aug. 1 remain nonbinding. "Litigants relying on those decisions are still at the peril of the old physical-precedent rule," Bullard said.

Michael Terry of Bondurant Mixson & Elmore said the change in rule 33.2 is "particularly important in Georgia because of our unique 'Two-Term Rule' that imposes a deadline for ruling."

"The prior rule caused many cases to be submitted to additional judges late in the second term, putting the 'stress' into the 'distress period'," Terry said. "The new rule will also assist attorneys in figuring out what is precedential without having to analyze concurrences, partial dissents, etc. to figure out what cases or divisions of cases are binding precedent."

Holland & Knight partner Laurie Webb Daniel said the new rule "reflects the Court of Appeals' effort to be more efficient."

"Previously, if there was a dissent, the case went to an 'en banc' court automatically, usually with seven judges deciding the case. The en banc ruling was binding," Daniel said. "To avoid that cumbersome process, which usually occurred at the end of the term during the 'distress period' when the Court had to deal with the two-term deadline, judges often would concur in judgment only instead of dissenting outright. That meant that the opinion would not be binding precedent but only 'physical precedent.' But physical precedent can be cited as persuasive authority even though it is not binding. And, as a practical matter many opinions that are only 'physical precedent' have been cited by both the Georgia Supreme Court and Georgia Court of Appeals—even in some very significant decisions. The new rule therefore reflects what already was a matter of practice—split decisions could still be influential."

Darren Summerville of the Summerville Firm also took note of the value of split decisions.

"We think the rule change is a marked improvement that brings the Georgia Court of Appeals further in line with basically every other intermediate appellate court. When a court publishes precedential opinions with dissents, it furthers the conversation about the law in a way that advances an appellate court's primary purpose—getting the law right," Summerville said.

"The public and bar benefit from having differing viewpoints carefully explored by our jurists, and having those discussions in precedential opinions maximizes the benefit. When a conflict in the court's jurisprudence arises, it will no longer fall into the shadows as non-precedential," Summerville said.

"That such split opinions will now bind future litigants, and not just the parties, will provide a better platform for obtaining en banc hearing at the Court of Appeals or certiorari to the Georgia Supreme Court. Under that framework, fewer anomalous decisions will escape correction, making the law more consistent—a universal good," Summerville said.

But he noted another advantage of the change, one that may be welcomed by those in disagreement.

"Finally, the new rule reflects an important truth about the ultimate health of the judicial system and rule of law—sometimes the lone voice dissenting in the wilderness is right," Summerville said. "Giving that voice a place in a precedential opinion allows litigants to harness the reasoning to make their points more persuasively and it keeps the door open to changing minds in the ultimate pursuit of getting it right."