THE END (ALMOST) OF “PHYSICAL PRECEDENT” IN GEORGIA

One of the unique aspects of decisions of the Georgia Court of Appeals has been the concept of "physical precedent." With rare exceptions, the Georgia Court of Appeals relies on three-judge panels to decide cases. If one of the judges on a three-judge panel concurred in the judgment but not the panel's reasoning or, in recent years, if one of the judges dissented, the decision of the court was deemed to be “physical precedent." It was persuasive authority but not binding authority in subsequent cases. The existence of such decisions required appellate practitioners to pay attention to whether a case being cited was merely “physical precedent" and therefore only persuasive authority.

Effective March 30, 2020, the Court of Appeals amended its rules to abolish physical precedents, at least going forward. For decisions issued after August 1, 2020, any decision in which the majority of judges fully concurs in the judgment and the reasoning is binding precedent. A decision issued with a concurrence in the judgment only or a dissent will no longer be a physical precedent.

This change will not affect cases decided prior to August 1, 2020. Decisions issued before that date that were physical precedents at the time they were decided will remain physical precedents and, therefore, merely persuasive authority. Thus, appellate practitioners in Georgia will continue to need to understand the significance of “physical precedent.”

The modified rule of the Georgia Court of Appeals can be found here.

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