DAfter Johnny Depp largely prevailed in his defamation lawsuit against Amber Heard, his lawyer Elaine Bredehoft announced that her client “absolutely” intends to appeal.
The jury, made up of five men and two women, announced on Wednesday (June 1) that it had found that Heard had defamed Depp in three statements. Jurors also found that Heard was defamed by one of the three statements in her counterclaim.
The Independent spoke to three attorneys about Heard’s possible grounds for appeal, or even a new trial: Lisa Bloom of The Bloom Firm, whose clients include Janice Dickinson, Mischa Barton and several victims of Jeffrey Epstein; Jesse Weber, network host and attorney Law & Crime, which covered the trial from the Fairfax (Virginia) courthouse; and Mitra Ahouraian, a Beverly Hills entertainment attorney who represents actors, directors, producers and musicians.
Amber Heard’s op-ed writing
Bloom saw several appealable issues in Depp’s verdict against Heard, beginning with the writing of the Depp’s op-ed. Washington Post 2018 from which Depp’s defamation lawsuits stem.
“Because of the First Amendment, the precise words [de una declaración dada] are closely examined,” he explained. “In this case, Amber Heard only said that she was a public figure representing domestic violence. In my opinion, this means that even if she was a victim of domestic violence, even once, the statement is true, and the case is over. She didn’t have to win that she was the victim of multiple incidents, or even significant incidents. Just domestic violence of some kind.”
Bloom highlighted the fact that Heard “didn’t even name” Depp in the op-ed, meaning “the appellate court can say the comment wasn’t specific enough to override his First Amendment rights.”
One of the three claims in Depp’s lawsuit is the headline of the op-ed, which is another potential problem in Bloom’s view.
“It was considered that [Heard] had defamed him based on a headline that she had not written, but simply retweeted,” he said. “This verdict, if upheld, would cause major First Amendment problems for the millions of tweeters who retweet articles all day. Will they be held liable for defamation if the article is inaccurate?”
Bloom also saw potential problems in the way jurors awarded damages: After first announcing that they had a verdict, they were sent back, as it appeared that they had failed to award some or all of the necessary damages. They returned shortly after having awarded Depp $15 million and Heard $2 million (Judge Penney Azcarate adjusted Depp’s awards to meet a state cap; he was actually awarded $10.35 million).
The timing of the awards, for Bloom, “seems very rushed,” and is an issue he would raise on appeal.
Possible pieces of evidence
Weber referred to statements made by Bredehoft in post-trial interviews to try to outline possible strategies for Heard’s legal team.
“The arguments on appeal center on what Heard believes to be incorrect legal rulings by the judge. That is why it is so important to file objections and motions during the course of the trial to preserve these issues for appeal,” he stated.
“Based on Elaine Bredehoft’s comments after the verdict, it appears that they will focus on evidence that was ‘suppressed’ at trial, such as medical records, and perhaps arguing that damaging evidence of [Depp]. It also seems that [el equipo de Heard] disagrees with the fact that the UK ruling, in which a judge found multiple cases of abuse by [Depp]could not be presented to the jury.
Depp sued the publisher of The Sun in 2018 by a headline that had labeled him a “women beater.” A judge ruled against him in the UK case in 2020.
Heard’s attorneys “could also argue that there were issues with the jury instructions/jury form,” Weber added.
Ahouraian underscored the fact that “an appellate judge does not re-judge the facts or question the jury’s verdict.”
“An appellate judge examines whether there was a legal error that led to an unfair ruling, for example, whether the judge made a serious mistake such as excluding evidence that was relevant,” he explained.
“Heard’s lawyers maintain that relevant evidence that could have affected the outcome of the case was excluded. Some of this evidence made it to trial in the UK against The Sunthat [Depp] he lost, and they didn’t make it to this trial, which makes his point understandable, but the laws there are, of course, different.”
An “incoherent” verdict
In an interview with BBC Newsnight, Bloom described the verdict in Depp v. Heard as “inconsistent,” due to the way jurors found that both Depp and Heard were defamed.
Jurors found that Depp was defamed in Heard’s op-ed, in which she describes herself as “a public figure representing domestic abuse,” but also found that Heard was defamed in a statement by Adam Waldman. (Depp’s former lawyer) in which he called some of Heard’s claims “a hoax.”
“How can it be that Amber Heard was smeared when Johnny Depp’s lawyer said her allegations were a hoax, and yet Johnny Depp was also smeared when he said he was representative of domestic violence?” Bloom asked on the show. “I think that’s inconsistent, and you can’t have an inconsistent verdict.”
Weber expressed his doubts about whether this could be a strong reason for an appeal, because “normally appeals are not about the decision of the jury per se”.
He also pointed to the specific statement that jurors felt defamed Heard. It was a statement in which Waldman said: “This was just an ambush, a hoax. They set up Depp by calling the police, but the first attempt was unsuccessful. The agents went to the penthousesThey were searched and thoroughly interviewed, and left after seeing no damage to their faces or property. So Amber and her friends spilled some wine and messed the place up, cleared up her stories under the direction of a lawyer and a publicist, and then made a second 911 call.”
For Weber, the verdict is not necessarily incoherent. “The jurors said in essence that we do not believe that [Heard] told the truth about her experience with Johnny Depp, that is, that she was an abuse survivor, but we also believe that Depp’s lawyer [Depp]acting as his agent, went too far and falsely stated that [Heard] and his friends set up the scene of an alleged attack,” he stressed. “You might believe that Heard wasn’t actually hit in the face with a cell phone as she claimed in May 2016, but you also might not think that her friends helped create a fake cover-up attack.”
The jurors were not kidnapped during the seven weeks that the trial lasted. They were instructed not to read about the case or do any outside investigation, but the length of the process, coupled with the fact that it was broadcast on television and overwhelmingly discussed online, has raised questions about whether it is feasible for members of the jury have remained isolated from any content related to the trial.
“Heard’s team could try to show that because the jury was not isolated, it was exposed to all of Depp’s fans and media scrutiny, which influenced the verdict,” Weber said, adding that “it seems that will be a major issue for Heard’s team on appeal.”
“On the one hand, you can ask how the coverage, the public and social media didn’t influence the verdict,” Weber said. “On the other hand, it is an assumption. They were instructed not to watch any outside material or see anything about the trial. Unless a juror does an interview and says something about it, or unless the [Heard] can present evidence of jury misconduct, right now that’s a speculative argument and unlikely to succeed.”
Ahouraian highlighted the judge’s decision not to hijack the jury.
“It makes sense that the jury in a highly publicized case like this would be hijacked, not just ‘instructed’ not to go on the internet or talk to anyone about the case,” he said. “That’s not realistic in a case like this: People are going home to their families and the case is everywhere. I’m sure, giving the jury the benefit of the doubt, maybe when someone was checking their email or something seemingly innocuous, some information came up.”
Although Ahouraian acknowledged this possibility, and the fact that it “could have greatly influenced the outcome and made the trial unfair”, she is not sure that it constitutes a legal error, “since I don’t know if anyone could have predicted the level of attention on social media and the vitriol that people have directed at [Heard]”.
“However, if a juror actually looked online, and actually heard or saw something despite the judge’s order, then that could be grounds for a mistrial,” he added.
Bloom suggested potential jury trouble could lead to an arraignment or even a new trial, but acknowledged similar difficulties.
“She would have to prove that interference, which would be challenging,” he said. “Perhaps a member of the jury will talk about this in an interview with the press. I’ll keep an eye on it. Pay attention”.