Georgia’s 2018 Elections: Lessons Learned and Potential Impact on Litigation – by Rusty Grant

With the 2018 mid-term elections in the books, Georgia litigators have two primary takeaways that may affect their practices going forward.

First, while Georgia remained a primarily Republican state, there was a noticeable “blue wave” that represents a shift from 2014 and 2016. These outcomes were particularly apparent in North Fulton, Cobb and Gwinnett Counties, which have long been considered more conservative venues for Georgia litigants. This shift seems to coincide with increasing jury verdicts in both venues and may represent a changing attitude for litigants to be mindful of.

Second, although Democrat Stacey Abrams has not yet conceded the gubernatorial race, it appears Republican Brian Kemp has the votes to prevail. This means that for at least four more years, newly-appointed judges will likely have a more conservative approach and may be more likely to grant summary judgment to businesses and insurance carriers. Georgia has seen an increase in conservative judges, particularly in the last decade, now having had Republican governors since 2003.

In addition to the above two trends, the following outcomes have the potential to impact litigation in Georgia following the 2018 elections:

Amendment 2

Georgia voters have approved a measure that would establish a state-wide business court, allowing litigants in certain business disputes to remove their cases to this newly created jurisdiction. While the legislature must still prescribe many of the rules that will govern the court, we know that judges will be appointed by the Governor and must be approved by the Georgia Senate and House judiciary committees. Judges will serve a term of five years and can be re-appointed an indefinite number of times.

It remains somewhat unclear what specific types of disputes will come before the business court. However, the Fulton County Superior Court’s current business division may serve as a guide. It accepts cases involving the following:

  1. Georgia Securities Act of 1973, O.C.G.A. 10-5-1
  2. UCC, O.C.G.A. 11-1-101
  3. Georgia Business Corporation Code, O.C.G.A. 14-2-101
  4. Uniform Partnership Act, O.C.G.A. 14-8-1
  5. Uniform Limited Partnership Act, O.C.G.A. 14-9A-1
  6. Georgia Revised Uniform Limited Partnership Act, O.C.G.A. 14-9-100
  7. Georgia Limited Liability Company Act, O.C.G.A. 14-11-100
  8. Georgia International Commercial Arbitration Code, O.C.G.A. 9-9-20
  9. Any other action that the parties and the Court believe warrants assignment to the Business Court, including large contract and business tort cases and other complex commercial litigation, and the value of the relief sought is at least one million dollars.

Cases involving personal injury, wrongful death, employment discrimination, or low-dollar consumer class action claims, however, are excluded from the Business Court unless all parties consent to the transfer.

Perhaps the biggest change for most litigators may be that with the business court becoming state-wide, a certain number of cases that would otherwise tie up the average State or Superior Court docket may no longer be an obstacle. If the typical judge has only one complex, two-week business trial per year, that opens up two weeks of time for other cases to reach a jury.

Judicial Elections

The November elections did not involve the judiciary. However, there were judicial elections in May 2018 that will affect the bench at the end of the year. Justice Carol Hunstein will be stepping down from the Georgia Supreme Court after 26 years and is being replaced by John Ellington. Judge Ellington has been on the Georgia Court of Appeals since 1999, having previously been a trial lawyer and Treutlen County State Court judge.

Ellington’s seat will be assumed by Ken Hodges. Hodges has no prior judicial experience but served as the District Attorney in Dougherty County before practicing as a trial lawyer who specialized in criminal defense and serious personal injury. Hodges lost a bid as a Democrat for Georgia Attorney General in 2010.