What About the Dissent? (Physical Precedent in Georgia Opinions)
Does a Dissent Make an Opinion Non-Binding in Georgia?
A dissenting opinion does not automatically make a Georgia Court of Appeals decision non-binding. Appeals are decided by a panel of judges, one of whom writes the opinion. Sometimes a judge on the panel agrees with the majority outcome but not the reasoning, and sometimes a judge disagrees outright. When that happens, the court may publish a dissent. Whether that dissent affects the opinion's status as binding precedent depends on when the Georgia Court of Appeals decided the case, and the rule works differently again in the Eleventh Circuit.
Dissenting opinions do not change the court's judgment, and they are not binding precedent in themselves. They can be extremely influential, though, because they highlight weaknesses in the majority's reasoning and often become the blueprint for future arguments or future opinions that ultimately change the law.
What Was Georgia's "Physical Precedent Only" Rule?
Georgia's physical precedent only rule set a distinctive standard for binding precedent. Under that framework, a published Georgia Court of Appeals opinion that included a dissent or certain concurrences counted as persuasive rather than binding, at least for the disputed portion of the opinion. A published opinion decided by a three-judge division was binding only if all three judges fully concurred. This rule still governs any Georgia Court of Appeals opinion issued before August 1, 2020.
Georgia Court of Appeals former Rule 33.2 stated that an opinion was physical precedent only with respect to any portion of the published opinion in which any panel judge did one of three things: concurred in the judgment only; concurred specially without stating agreement with all that was said in the majority opinion; or dissented.
A judge who concurs specially agrees with the outcome but not the rationale. If a concurring judge does not expressly agree with all that is said in the majority opinion, the portions lacking full concurrence fall into physical-precedent-only territory under the pre-2020 rule.
En banc decisions are those in which all judges or a large quorum participate. For opinions before August 1, 2020, en banc decisions set binding precedent when a majority of participating judges fully concurred. If less than a majority fully concurred en banc, the result was physical precedent.
How Did the Rule Change in 2020?
The Georgia Court of Appeals changed its rule on binding precedent effective August 1, 2020. Under the amended rule, the key question for opinions decided on or after that date is whether a majority of the participating judges fully concur in both the judgment and the rationale for the portion of the opinion being cited. A published opinion can be binding precedent even without unanimity, so long as a fully concurring majority supports the specific legal proposition relied on.
Even under the current rule, careful readers still pay attention to the alignment of the judges on the reasoning, not just the outcome. If separate writings show that fewer than a majority fully concurred in a particular part of the rationale, that portion may function as persuasive authority rather than binding precedent. A divided court can still require a more precise, section-by-section reading to determine what constitutes the holding.
Does a Dissent Matter in the Supreme Court of Georgia or the Eleventh Circuit?
The Supreme Court of Georgia never adopted the physical precedent rule, so a dissent does not reduce an opinion's value as binding precedent there. When a majority of participating justices join an opinion's reasoning and judgment, that decision is binding regardless of whether one or more justices dissented. Supreme Court of Georgia opinions can still have fractured reasoning, and when justices agree on the result but not on a single rationale, the binding rule can become narrower.
In the Eleventh Circuit, a dissent generally does not affect whether an opinion is binding. Publication status is the dividing line: a published Eleventh Circuit opinion is binding under the circuit's prior-panel-precedent rule, while an unpublished Eleventh Circuit opinion is not binding precedent, though it may still be cited as persuasive authority.
What This Means in Practice
In the Georgia Court of Appeals, timing controls whether a dissent affects binding precedent. For opinions decided before August 1, 2020, a dissent can signal that the decision, or at least the disputed portion, functions as physical precedent only, meaning persuasive rather than binding. For opinions decided on or after that date, a dissent does not automatically reduce precedential value; the controlling question is whether a majority fully concurred in the relevant reasoning. In the Supreme Court of Georgia, a dissent does not prevent a majority opinion from being binding precedent, though fractured rationales can complicate identifying the holding. In the Eleventh Circuit, a dissent does not change binding status; publication does.
The best practice, especially when a case is divided, is to read the vote line and the separate writings with an eye toward the specific legal proposition being cited. If a majority of the court agreed with that proposition, it is binding precedent. If not, the opinion may still be valuable, but as persuasive authority rather than a controlling rule.
Consult an experienced Georgia appellate attorney to assist you when in doubt of the precedential consequences of a dissent and how those opinions fit into your briefing strategy.
Content on this blog is provided for general informational and educational purposes only and may not reflect the most current legal developments. As some information may be out of date or incomplete when you read it, you should not rely on this blog as legal advice. If you need guidance about a particular matter, consult a qualified attorney about your specific situation.
Last reviewed January 2026
