The jury of five men and two women announced on Wednesday (1 June) it had found that Ms Heard defamed Mr Depp on three statements. Jurors also found that Ms Heard was defamed by one of three statements in her countersuit.
The Independent spoke with three attorneys about Ms Heard’s possible grounds for an appeal, or even a new trial: Lisa Bloom of The Bloom Firm, whose clients have included Janice Dickinson, Mischa Barton, and several victims of Jeffrey Epstein; Jesse Weber, a host and attorney at the Law & Crime network, who covered the trial from the courthouse in Fairfax, Virginia; and Mitra Ahouraian, an entertainment attorney in Beverly Hills who represents actors, directors, producers, and musicians.
The phrasing of Amber Heard’s op-ed
Ms Bloom saw several appealable issues in the Depp v Heard verdict, beginning with the wording of the 2018 Washington Post op-ed from which Mr Depp’s defamation claims stemmed.
“Because of the First Amendment, the precise words [of a given statement] are closely scrutinized,” she said. “Here, Amber Heard said only that she was a public figure representing domestic violence. In my view, this means that if even she was a domestic violence victim even once, the statement is true, and the case is over. She did not have to win that she was a victim of multiple incidents, or even significant incidents. Just domestic violence of some kind.”
Ms Bloom highlighted the fact that Ms Heard “never even named” Mr Depp in the op-ed, which means “the appellate court may say the comment was not specific enough to overcome her First Amendment rights.”
One of the three statements in Mr Depp’s lawsuit is the op-ed’s headline, which is another potential issue in Ms Bloom’s view.
“[Ms Heard was found to have defamed him based on a headline that she did not write, but merely retweeted,” she said. “This verdict, if upheld, would cause major First Amendment problems for the millions of tweeps who RT articles all day long. Are they to be held liable for defamation if the article is inaccurate?”
Ms Bloom also saw possible problems in the ways in which jurors awarded damages: After they first announced they had a verdict, they were sent back, as it appeared they had omitted to award some or all of the necessary damages. They returned shortly afterwards having awarded Mr Depp $15m and Ms Heard $2m. (Judge Penney Azcarate adjusted the damages awarded to Mr Depp to conform to a state cap; he has actually been awarded $10.35m.)
The timing of how the damages were awarded, to Ms Bloom, “seems very slapdash”, and is an issue she would raise on appeal.
Possible evidentiary issues
Mr Weber pointed to statements made by Ms Bredehoft in interviews after the trial in seeking to outline possible strategies for Ms Heard’s legal team.
“The arguments on appeal are focused on what Heard believes are incorrect legal rulings by the judge. That is why making objections and motions during the course of the trial is so important to preserve these issues for appeal,” he said.
“Based on Elaine Bredehoft’s comments after the verdict, it seems they will be focusing on evidence that was ‘suppressed’ at trial, such as medical records, and perhaps arguing prejudicial evidence from [Mr Depp] was allowed to be introduced. It also seems [Ms Heard’s team] took issue with the fact that the UK ruling, where a judge found multiple instances of abuse by [Mr Depp], could not be presented to the jury.”
Mr Depp sued The Sun’s publishing company in 2018 over a headline which had called him a “wife beater”. A judge ruled against him in the UK case in 2020.
Ms Heard’s attorneys “could also argue there were problems with the jury instructions/jury form,” Mr Weber added.
Ms Ahouraian underlined the fact that “an appellate judge does not retry the facts or question the jury’s verdict”.
“An appellate judge looks at whether there was a legal error that resulted in an unfair ruling, for example, if the judge made a serious mistake such as excluding evidence that was relevant,” she said.
“[Ms Heard]’s lawyers contend that relevant evidence that could have affected the outcome of the case was excluded. Some of this evidence made it into the UK trial against The Sun, which [Mr Depp] lost, and didn’t make it into this trial, which makes her point understandable, but the laws there are of course different.”
An ‘inconsistent’ verdict
In an interview with BBC Newsnight, Ms Bloom described the verdict in Depp v Heard as “inconsistent”, because of the way in which jurors found that both Mr Depp and Ms Heard were defamed.
Jurors found that Mr Depp was defamed in Ms Heard’s op-ed in which she describes herself as “a public figure representing domestic abuse”, but also determined that Ms Heard was defamed in a statement by Adam Waldman (a former lawer for Mr Depp) calling some of Ms Heard’s claims “a hoax”.
“How can it be that Amber Heard was defamed when Johnny Depp’s lawyer said that her allegations were a hoax, and yet Johnny Depp was also defamed when she said she was representative of domestic violence?” Ms Bloom asked on the programme. “I think that’s inconsistent, and you can’t have an inconsistent verdict.”
Mr Weber expressed doubt as to whether this could prove to be solid grounds for an appeal, because “usually appeals are not about the jury’s decision per se”.
He also pointed to the specific statement which jurors found defamed Ms Heard. It was a statement in which Mr Waldman said: “Quite simply this was an ambush, a hoax. They set Mr Depp up by calling the cops, but the first attempt didn’t do the trick. The officers came to the penthouses, thoroughly searched and interviewed, and left after seeing no damage to face or property. So Amber and her friends spilled a little wine and roughed the place up, got their stories straight under the direction of a lawyer and publicist, and then placed a second call to 911.”
To Mr Weber, the verdict isn’t necessarily inconsistent. “The jurors basically said we don’t believe [Ms Heard] was telling the truth about her experience with Johnny Depp, namely being an abuse survivor, but we also believe that [Mr Depp]’s lawyer, who was acting as his agent, went too far and falsely stated that [Ms Heard] and her friends staged the scene of an alleged attack,” he said. “They could believe Heard was not actually hit in the face with a cell phone as she claimed in May 2016, but also not think her friends helped to create a hoax coverup attack.”
Jurors weren’t sequestered during the seven weeks of the trial. They were instructed not to read up on the case nor do any outside research, but the length of the proceedings, coupled with the fact that it aired on television and was overwhelmingly discussed online, has raised questions over whether jurors could feasibly have remained isolated from any content related to the trial.
“[Ms Heard’s team] could even try to show that since the jury was not sequestered that they were exposed to all the Depp fans and media scrutiny and that tainted the verdict,” Mr Weber said, adding that this seems “like it will be a major issue for [Ms Heard]’s team on appeal”.
“On one hand, sure you can ask how they could not have been exposed and tainted by the coverage, the crowds, social media,” Mr Weber said. “On the other hand, that is an assumption. They were instructed not to view any outside material or watch anything about the trial. Unless a juror does an interview and says something about this, or unless [Ms Heard]’s team can present evidence of juror misconduct, right now that is a speculative argument and is unlikely to be successful.”
Ms Ahouraian highlighted with the judge’s decision not to sequester the jury.
“It makes sense that the jury on a highly publicized case like this should be sequestered, not just ‘instructed’ to not go on the Internet or talk to anyone about the case,” she said. “That isn’t realistic in a case like this: People go home to their families, and the case is everywhere. I’m sure that, giving the jury the benefit of the doubt, perhaps when someone was checking their email or something seemingly innocuous, some information popped up.”
While Ms Ahouraian acknowledged this possibility, and the fact that it “could have heavily swayed the outcome and made the trial unfair”, she’s not certain it would constitute a legal mistake, “since I don’t know if anyone could have predicted the level of attention on social media and the vitriol people have directed at [Ms Heard].”
“However, if a juror actually did look online, and actually did hear or see something despite the judge’s order, then that could be grounds for a mistrial,” she added.
Ms Bloom suggested that potential issues with the jury could lead to an appear or even to a new trial, but acknowledged similar difficulties.
“She would have to prove that interference, which would be challenging,” she said. “Perhaps a juror will talk about this in a press interview. I will be watching for that. Stay tuned!”