2017 Updates to the Rules of the Georgia Court of Appeals

Effective January 1, 2017, the Georgia Court of Appeals adopted substantial revisions to its rules. This post highlights some of the more important new rules. The Court’s own summary of the rule changes is available here.

Maybe the biggest change of all does not actually appear in the Rules. The Court adopted new operating procedures allowing 2-1 decisions in the event of a dissent. Apparently these procedures took effect with the December 2016 term, but I haven’t actually seen a 2-1 decision yet. Under the old procedures, all 2-1 cases were referred to larger panels.

Rule 2. Documents; Communications; General.

The new rule specifically requires filings to include the filer’s email address. It also requires electronic filings to be in searchable .pdf format. (This was actually already in the Court’s e-filing instructions, but not in the Rules.) For anyone who doesn’t know how to do this, which seems to include a lot of my opposing counsel: Microsoft Word now has a built-in feature for it. When you go to print, instead of selecting your printer, select “Microsoft Print to PDF.” The resulting .pdf will be searchable. There’s also free downloadable software that can do the same thing for older versions of Word or other word processing programs. I still use Bullzip myself.

Under the old rule, everything was supposed to be double spaced except block quotations and footnotes. The new rule adds headings and captions to the list of properly single-spaced text categories.

The old rule required text to be “no smaller than 10 characters per inch,” but allowed 14-point Times New Roman “[n]otwithstanding the 10 characters per inch requirement.” I think most attorneys just used Times New Roman, which is what the Court has used in its own orders, to be safe. The new rule allows any “serif, proportionally spaced typeface of 14-point or larger,” and gives Times New Roman and Century Schoolbook as examples. I’ve been using Century Schoolbook under the similar rule in the Georgia Supreme Court and will start doing the same in the Court of Appeals.

New Rule 24, discussed below, changes most filings from page limits to word limits, so there’s no penalty for using large fonts.

The new rule no longer requires paper filings to have “a non-glossy, white back of recyclable paper, heavier than regular stationery-type paper,” which will come as relief to those pro se parties who actually read the rules.

Rule 3. Due Date.

Under the new rule, if the clerk’s office is closed for an emergency, filing deadlines are extended to the next day.

Rule 4. Court Filings and Determination of Filing Date.

This rule now clarifies that electronically filed documents – other than motions for reconsideration – may be filed up to 11:59 p.m. and still count as timely that day. This was already the Court’s practice.

The rule still requires motions for reconsideration to be actually received by the clerk before 4:30 p.m. on the day they are due. See also Court of Appeals Rule 37. For counsel, I think this rule is fine. But for pro se prisoners, or really any pro se living outside Atlanta, this rule is brutal.

Rule 6. Copies and Certificate of Service.

The new rule includes specific provisions for electronic service. But it doesn’t allow electronic service automatically. To use email service, a party must certify that, “based upon a prior agreement with the recipient party, service of a .pdf copy of the document via email will be deemed sufficient service.” In practice, some counsel have already been doing this even though the rules didn’t provide for it, but I have never seen the added formality of including mention of a prior agreement in the certificate. Maybe there have been problems with counsel getting loose with service.

Rule 12. Terms of Court.

This rule is quite different from the old Rule 12 and reflects a shift in the Court’s term schedule. The Court will now have December, April, and August terms, instead of January, April, and September.

The new rule also contains a sentence that I think will mislead some people: “Cases docketed in one term must be decided before the expiration of the following term.” This is the “two-term rule” as provided in the Georgia Constitution: “The Supreme Court and the Court of Appeals shall dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term.” The date of docketing, for the purposes of the two-term rule, is the date tentatively set for oral argument in the docket notice, not the date the clerk issues the Notice of Docketing.

It’s tricky. Let’s say I get a docket notice that says “Date of Docketing: January 3, 2017.” January 3 is in the December 2016 term under the new rule. The docket notice also says, “If oral argument is requested and granted by this Court, the argument is tentatively scheduled for May 15, 2017.” That’s in the April 2017 term. The date that matters, for purposes of the two-term rule, is May 15. The Court has until the expiration of the August 2017 term to decide the case. In other words, until November 18, 2017.

Instead of saying, “Cases docketed in one term must be decided before the expiration of the following term,” I think the new rule would cause less confusion if it said, “The Court will decide each case before the expiration of the term immediately following the term in which the case is tentatively set for oral argument.” Better yet, include the date by which the case will be decided in the Notice of Docketing.

Rule 22. Enumerations of Error – Filing.

This rule hasn’t changed at all. I just want to clarify, for anyone who’s confused: You don’t file a separate enumeration of errors. It’s just part of the opening brief. The only reason this even exists as a separate rule is because of OCGA § 5-6-40.

Also, the better title for the brief section in my view is “Enumeration of Errors,” not “Enumerations of Error.” An “enumeration” by definition is a list or a count. But note that Georgia appellate courts routinely refer to an individual error as an “enumeration of error,” and use the plural “enumerations of error.” This is one of those phrases that is more or less unique to Georgia practice.

Rule 24. Briefs – Preparation.

Several changes here. No more two inch margins at the top of the page – one inch margins are now OK all around. The length limitations have also changed. The limits are now 8,400 words in civil cases and 14,000 words in criminal cases. These seem to be a bit longer than the 30 or 50 pages the old rules allowed. A 30 page, 14-point Times New Roman double-spaced brief with 2-inch margins at top is about 6,200 words. This will allow filers to use better fonts than Times New Roman without worrying about their page limit. The new rules also require a certification as to length, but only for briefs that exceed the old 30/50 limits.

Another change that would be easy to miss: In criminal cases, efilers must now submit the defendant’s address “in the eFast system under the filing category ‘Other’ and the filing type ‘Information.’”

Rule 25. Briefs – Structure and Content.

This rule is mostly unchanged. The rule still does not require parties to include Summary or Introduction sections in briefs. I think it’s usually a good idea to do so.

Rule 30. Interlocutory Applications.

This rule has been expanded to clarify the procedures for efiling exhibits to interlocutory applications. The changes are substantial but they’re pretty much mechanical and I won’t discuss in detail here. From the tone of the rule, the Court wants to discourage applicants from filing too many exhibits.

Rule 31. Discretionary Applications.

Now that the Court of Appeals has jurisdiction over divorce appeals, this rule has been changed to incorporate the special provisions for divorce cases that had previously applied in the Supreme Court. And like Rule 30, Rule 31 now clarifies the procedures for efiling exhibits.

Rule 33. Judgment Lines.

There is a minor internal contradiction in this amended rule. New Rule 33(c) says that “A Per Curiam opinion is neither a physical nor binding precedent but establishes the law of the case as provided by O.C.G.A. § 9-11-60(h).” But Rule 33(a) says “an opinion is physical precedent only with respect to any portion of the opinion in which one or two of the panel judges concur in the judgment only, issue a special concurrence without a statement of agreement with all that is said, or the opinion is issued per curiam.” (Emphasis added.) The quoted part of Rule 33(a) doesn’t make a lot of sense. Grammatically, the bolded part isn’t parallel with the rest of the clause. But the point seems to be that per curiam opinions are physical precedent, while Rule 33(c) specifically says they are not.

I’m not sure it matters. Physical precedents aren’t binding anyway, except as law of the case. Maybe the Court is trying to say that per curiam opinions are less persuasive than physical precedents, or maybe it’s just a drafting error.

I also wonder if this rule change (adding mention of per curiam opinions) is an indicator that the Court will be issuing more published per curiam decisions. It issued several in late 2016, but they had been uncommon for at least the last 15 years.

Rule 41. Motions and Responses – Preparation and Filing.

Under the old rule, parties were not to attach to a motion any “exhibits that are included in the trial court record.” So by implication, documents not included in the trial court record could be attached. The new rule prohibits any document from being attached to a motion. But see Court of Appeals Rule 40(b) (requiring certain documents to be attached to emergency motions).

The new rule also cuts old language saying “the Court generally acts on motions quickly.” This language may have been confusing. Although the Court generally does act quickly on motions that benefit from quick action (like for extensions of time), many motions get carried with the case and only decided after the Court issues its judgment. Parties shouldn’t assume that a motion for sanctions, for example, will be decided quickly.

Rule 42. Access to and Retention of Office Papers.

This rule used to provide that the party paying for the record could claim the physical copy of the record from the Court, one year after remittitur, to avoid the record being destroyed. I don’t see anything about that in the current rules, but I don’t know if any change is intended.