What About the Dissent? (Physical Precedent in Georgia Opinions)
Appellate decisions don’t always speak with one voice. Appeals are decided by a panel of judges, one of whom is assigned the task of writing 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 separate opinion—a dissent. The practical question for lawyers and litigants is usually this: if there’s a dissent, is the decision still binding precedent?
Dissenting opinions do not change the court’s judgment, and they are not binding precedent in themselves.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.
For many years, Georgia had a distinctive concept known as “physical precedent only.” Under that framework, a published Georgia Court of Appeals opinion that included a dissent or certain concurrences should be treated as persuasive rather than binding, at least for the disputed portion of the opinion. In other words, a published opinion decided by a three-judge division was binding only if all three judges “fully concurred” in the opinion. It is important to know that this rule still applies to all cases decided by the Georgia Court of Appeals before August 1, 2020.
Georgia Court of Appeals former Rule 33.2 states that an opinion is “physical precedent only” with respect to any portion of the published opinion in which any panel judge does one of three things: the judge concurs in the judgment only; concurs specially without stating agreement “with all that is said” in the majority opinion; or dissents.
What does it mean to “concur specially”? This is where a judge agrees with the outcome but not the rationale. So if you see a special concurrence, you look for whether the concurring judge expressly says they agree with “all that is said” in the majority opinion; if they do not, the portions lacking full concurrence fall into physical-precedent-only territory under the pre-2020 rule.
One more note: 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 concur. If less than a majority fully concur en banc, the result is physical precedent.
The rule changed effective August 1, 2020. Under the Georgia Court of Appeals’ 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 even if it is not unanimous, so long as the “fully concur” majority requirement is satisfied for the legal proposition on which you rely.
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. Thus, a divided court can still require a more precise, section-by-section reading to determine what, exactly, constitutes the holding.
The Supreme Court of Georgia never followed the physical precedent rule, so dissents do not downgrade an opinion’s precedential value. When a majority of participating justices join an opinion’s reasoning and judgment, that decision is binding precedent regardless of whether one or more justices dissented. Still, as with current opinions decided at the Georgia Court of Appeals, Supreme Court of Georgia opinions may have fractured reasoning. When justices agree on the result but not on a single rationale, the binding rule can become narrower, and lawyers must identify the legal principle that actually commanded majority support.
Likewise, in the Eleventh Circuit, the presence of a dissent generally does not affect whether an opinion is binding. Publication status is the major dividing line. Published Eleventh Circuit opinions are binding under the circuit’s prior-panel-precedent rule, while unpublished opinions are not binding precedent, even though they may be cited as persuasive authority.
So what does a dissent mean for binding precedent? In the Georgia Court of Appeals, you must first consider timing. For many pre–August 1, 2020 opinions, a dissent signals that the decision (or at least the disputed portion) should be cited as“ physical precedent only,” meaning persuasive rather than binding. For opinions decided on or after August 1, 2020, 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, though fractured rationales can complicate the identification of the holding. In the Eleventh Circuit, the presence of 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 you want to cite. If a majority of the court actually agreed with that proposition, you are relying on binding precedent. If they did 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
