Rule Changes in the Court of Appeals: An Update

by Eric J. Marlett

In the Winter 2015 issue of The Appellate Review, we covered a number of significant rule changes in the Georgia Court of Appeals that became effective in the summer and fall of 2014. Since then, significant legislative changes have gone into effect expanding the Court of Appeals to fifteen judges and shifting rule making authority to the Court regarding procedures for determining cases by more than a single division and for establishing and overruling precedent. These new rules are still in the process of being developed, and they are expected to be released in the near future, but in the meantime the Court has implemented and published on its website certain operating procedures that became effective July 1, 2016.

Specifically, these new operating procedures provide that in the event of a dissent on a three judge panel, the next two full divisions of the Court, for a total of nine judges, rather than the previous seven, shall participate in the case. In the event that the overruling of a prior decision is involved, all fifteen judges of the Court shall participate, but disqualification of any judge or judges shall not preclude the overruling of precedent as long as at least nine judges participate.

The Court of Appeals has, as of Sept. 1, 2016, also approved additional changes to its operating procedures which are expected to go into effect by December Term 2017. These changes include allowing 2-1 decisions without requiring referral to a nine judge panel, though any such split decision would not be considered binding precedent. The Court will also implement procedures for polling the entire Court when overruling a prior decision is proposed or a judge otherwise desires the whole Court to consider a case. Finally, the Court is considering establishing procedures to allow a party to request rehearing en banc, taking into the consideration the constraints of the two-term rule of Article VI, Section IX, Paragraph II of the Georgia Constitution.

The following are some additional rule changes that became effective in 2015. The most extensive amendments span Rules 17, 18, 19 and 21, covering the transmission and handling of records, transcripts and evidence, and are interrelated.

Rule 21 (“Physical Evidence – Original Evidence”) has been deleted in its entirety, and has been replaced with new language that streamlines the scope of the rule, now retitled simply “Original Evidence”. The new rule carries forward the requirement that no original evidence is to be transmitted to the Court of Appeals unless requested by the Court, or pursuant to a motion granted by the Court. Such a motion, in addition to still requiring a specific explanation of the particular evidence, and the reason it is necessary to determine the appeal, now also requires the movant to “describe its general size and weight”. The language in former Rule 21, that “[i]n no event, unless directed by this Court, shall physical evidence be transmitted to the Court which is bulky, cumbersome, or expensive to transport, or which, by reason of its nature, is dangerous to handle, or which is contraband”, has been omitted from the new rule. Additionally, under former Rule 21, a party relying on any physical evidence had the option of including a photograph, video or audio recording of the evidence instead of sending the original evidence to the Court of Appeals. That language has been removed.

Rule 18 (“Preparation and Arrangement of Records and Transcripts”), however, has been expanded, and now contains a new subsection (b) which governs the transmission and handling of video and audio recordings. Current Rule 18(b) provides that when transcripts are to be included in the record, “copies of all video or audio recordings that were introduced into evidence shall be transmitted to this Court along with the trial or hearing transcript.” The party who tendered any such recordings must ensure that they are part of the trial court record, but the appellant bears the responsibility of making sure that all such video and audio recordings are sent to the Court of Appeals. The remainder of the new section (b) addresses the Court’s authority to “take whatever action is necessary in order to ensure completion of the record”, but notes that the consequences of a failure to complete the record may be the nonconsideration of enumerations of error associated with the missing recordings. Any recordings transmitted must be on DVD or video or audio CD, together with any software needed to play them. The formerly accepted formats of VHS and audio cassette tape, previously allowed under former Rule 21, are no longer supported.

The old Rule 18(b), regarding sealing of records, is now subsection (c), and a new subsection (d) has been added, which provides that instead of transmitting a paper transcript, as long as all other criteria for transcripts have been met, the trial court may now submit a certified transcript on CD in a searchable PDF format. Rule 17 (“Duty of Trial Court Clerks”) and Rule 19 (“Transmission of Transcript”) have been appropriately updated to reflect this newly available method for transmitting the transcript, and Rule 17 has also now been aligned with the recent changes in Rules 30(b) and 31(e), to clarify that trial court documents containing a judge’s electronically signed or stamped signature are acceptable where it is the official practice to sign in this manner.

The remaining 2015 amendments affect Rules 1, 4 and 24.

Rule 1(a) (“Requirement for Written and Signed Documents”) has been updated, similarly to Rule electronically signed or stamped signature are permissible where it is the official practice to sign in this manner, and that Rule has also been revised to clarify that conformed or stamped signatures by judges, attorneys and staff, instead of not being permitted, are now not permitted “except as otherwise provided in the Court’s electronic filing instructions.”

Following the recent amendment of Rule 46, making electronic filing mandatory as of January 1, 2015, Rule 4(b) (“Electronic Filing”) has also been changed accordingly to provide that counsel are now “required to file all documents electronically with the Court”. A list of examples of documents required to be e-filed has been included in the Rule, and the Court’s eFaST site, which provides a copy of the general electronic filing instructions noted in the Rule, also now provides separate, detailed instructions for e-filing emergency motions, and interlocutory and discretionary applications.  

Finally, Rules 24(f) (“Limitation as to Length”) and 24(g) (“Attachments and Exhibits”) have been amended to remove the option of attaching exhibits to an appellate “exhibits and appendices” in defining the page limits, and Rule 24(g), which formerly provided that documents attached to a brief, but not certified as part of the record, would not be considered, now simply states “[d]o not attach any document or exhibit to an appellate brief.”

As always, when filing with the Court of Appeals, be sure to double check the current rules on the Court’s website for any recent amendments.

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Eric J. Marlett is a senior associate with McGahren, Gaskill & York, LLC, a general practice litigation and transactional firm with offices in Gwinnett County. Mr. Marlett is a graduate of Georgia Tech, New York Law School, and Goizueta Business School at Emory University, and focuses his practice primarily on civil litigation and appeals.