After 13 hours of deliberation, the jury deciding the fate of Johnny Depp’s libel duel with Amber Heard announced on Wednesday that they had reached a verdict. There was just one problem: you forgot to report damage.
Judge Penney Azcarate ordered the jury to retire to the deliberation room without notice. It could have taken an hour or another three days. After all, the jury has a wide latitude in calculating damage, and there is no formula to follow. You don’t get much guidance.
But just 15 minutes later, the judges came back with a number. They awarded Depp $15 million in a verdict in the actor’s favor on all counts. Of the award was $5 million in punitive damages aimed at punishing Heard for particularly reprehensible behavior and deterring similar behavior in the future (later reduced to $350,000 under the state’s legal cap).
The decision was in stark contrast to the outcome in the UK, where Depp lost a similar defamation case in November 2020. A key difference that led to the turn in Depp’s fate, legal experts say, is that his most recent case was decided by a jury, while his trial abroad was decided by a judge.
“You have seven people on a jury who bring their own bags,” said Amber Melville-Brown, who oversaw both trials as head of the US media and reputation team at international law firm Withers. “A judge may be more used to distancing himself from the evidence where a lay group may be less able to do so.”
Depp received a lopsided victory in his lawsuit against Heard, defeating all three claims that he was defamed in his ex-wife’s December 2018 statement The Washington Post. Heard won only one of her three countersuits alleging that Depp defamed her – through his former attorney Adam Waldman – by calling her allegations a hoax. In the separate judgment, she was awarded $2 million, with no punitive damages. (That post op-ed now includes an editor’s note on the verdict.)
The headline, which turned out to be defamatory, read: “I spoke out against sexual violence – and faced the wrath of our culture. That has to change.” The other slanderous remarks read: “Then two years ago I became a public figure representing domestic violence and I felt the full brunt of our culture’s anger at women speaking out.” , and “I’ve had the rare vantage point of seeing, in real time, how institutions are protecting men accused of abuse.” Though the statements didn’t mention him by name, Depp claimed they implied he had abused Heard.
In the UK, Depp lost a similar lawsuit for defamation The sun after calling him a “wife beater”. As part of its defense, the tabloid was forced to substantiate its claims under the country’s strict defamation laws, unlike in the US trial, where the burden of proof rested with Depp.
That’s what the judge decided at the time The sun proved that 12 of the 14 incidents of abuse were essentially true. The lawsuit was not decided by a jury.
The British verdict was one of the reasons Depp’s victory in the Virginia trial was so unlikely. Defamation lawsuits brought by celebrities and other public figures in the United States are extremely difficult to win. Part of the reason is that these plaintiffs have the added burden of proving that the speakers of the defamatory statements made them with “actual malice,” or with the knowledge that they knew the allegations were lies, or with reckless disregard for the acted in truth.
“In the UK the plaintiff has a much better chance of winning and in the US the defense [does]says George Freeman, director of the Media Law Resource Center. “The opposite happened here.”
The verdict indicates that the jury rejected Heard’s central theory of the case: that if there was even one instance of abuse, she should win because then her testimonies would be true. The jury was swayed by Depp’s arguments that Heard faked her injuries, which she documented with photos and audio to boost her career by claiming her #MeToo moment. They were convinced that Heard had lied about any abuse.
“Contrary to the UK result, seven people got together in a room and found that not only were there not 12 cases of domestic violence, there were zero,” says Lee Berlik, a Virginia-based defamation attorney. “Not only that, they felt that these vague statements amounted to a hoax. It’s hard to reconcile that with a judge in the UK making that determination [Heard’s] tell the truth.”
Notably, the Virginia trial jurors were not seized, meaning they may have been exposed to third-party information or context about the case. The process proved to be a gold mine for online influencers, who responded in real time on Twitch and YouTube and posted memes on Instagram and Facebook.
Heard’s attorney Elaine Bredehoft argued on NBCs today on Thursday that social media played a role in the verdict.
“[The jury] went home every night,” said Bredehoft. “They have families. The families are on social media. We had a 10 day break in the middle because of the Judicial Conference. There’s no way they weren’t influenced by it. And it was terrible. It was really, really wrong. It’s like the Roman Coliseum.”
The #JusticeForJohnny campaign was far more popular than posts supporting Heard. Depp’s post-trial message to fans on Instagram had 17 million likes Thursday, while Heard’s message had approximately 300,000. During the course of the trial, Heard was relentlessly taunted by influencers who claimed she falsified her testimony by recounting multiple counts of abuse by Depp. She was branded a liar for failing to keep her promise to donate her $7 million divorce settlement to the American Civil Liberties Union and Children’s Hospital Los Angeles, though she stated that they were stopping making donations to be paid would have to last for several years in order to bear the legal costs.
“I was told that the jury couldn’t have avoided all the Johnny Depp fans in and around the courthouse and all the chatter on social media in his favor,” Freeman said. “It’s not unrealistic to think that affected her. If so, that is problematic.”
Regardless, selecting nine truly unbiased judges was a lot to ask. Heard’s abuse allegations against Depp, a former anchor character in franchise films, have existed since 2016, when she obtained a domestic violence restraining order. A man was allowed to be on the jury, though he revealed a text from his wife calling Heard “psychotic.” The message goes on to say: “If a man says a woman hit him, they never believe him.”
It also raises the question of whether the judge should have brought the case to court in the first place. Before a jury was convened, Heard moved that the lawsuit be dismissed on the theory that the statements were not specific enough to infer that they related to Depp.
Berlik was particularly concerned about not dismissing the statement: “I’ve had the rare vantage point of seeing in real time how institutions are protecting men accused of abuse.” While there may be implicit libel, he wondered how the allegation Depp concerns at all.
“How can seven heads all agree that this was a false statement?” asked Berlik. “It seems more likely that the jury went in and everyone said, ‘We believe Johnny and we don’t believe Amber.'”
While agreeing with the judge’s decision to let the jury decide whether the statement was libelous, former California appeals judge Halim Dhanidina said, “There comes a point when a statement is so vague that it cannot reasonably be determined as a statement can fact.”
Dhanidina added, “There is a point where the court needs to draw a line.”
Another key issue in the appeals process will be whether the trial should have taken place in Virginia rather than California, where both sides reside. Depp chose to sue Heard in Virginia, at least in part, because the state didn’t have an anti-SLAPP statute at the time that would allow early dismissals of lawsuits designed to restrict free speech. Azcarate sided with the Pirates of the Caribbean Actor that because the op-ed was printed in Virginia, it was appropriate to try the case in Virginia Post’s facility in Springfield.
If the case had been moved to California, Heard could have filed a motion to dismiss the lawsuit early under California’s generous anti-SLAPP statute. That way, Heard would have shifted the burden of proof to Depp to prove that he was likely to win the case. Legal experts agreed that a change of venue probably would not have changed the outcome of the trial, but it would have put another arrow in Heard’s quiver. Combined with a new judge making different decisions, such as not allowing the trial to be broadcast publicly, it may have thrown her over the edge.