The jury got it wrong. It found that actor Amber Heard had defamed her ex-husband, actor Johnny Depp, in three separate statements, delivering a $15 million verdict Wednesday on a lawsuit he filed against her. But similarly, the $2 million award against Depp in Heard’s countersuit of defamation was wrong too, in my opinion.
The jury should have instead held neither side liable in Depp’s $50 million suit against Heard and Heard’s $100 million countersuit. In other words, no one should have won; everyone should have lost.
First let’s boil down what the jury was considering. There was a lot of evidence in this case. A lot. Some of it stretched the boundaries of relevance, but you can’t fault the judge for erring on the side of inclusion.
The jury found for both of them, technically. But while both sides “won,” Depp was the overwhelming winner.
Let’s start with Depp’s claim. It’s easier to follow than Heard’s counterclaim. It centered on three statements contained in an op-ed Heard wrote for The Washington Post on Dec. 18, 2018.
The first statement was the headline, which read, “Amber Heard: I spoke up against sexual violence — and faced our culture’s wrath. That has to change.”
Then, within the op-ed, was the second statement: “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.”
And the third: “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”
For every one of those statements, Depp had to prove each of these elements by a preponderance of evidence:
1. That it was “false.”
2. That it communicated to someone else something “defamatory” and that it was “about” Depp.
3. That Heard intended it to be defamatory.
4. Then, by clear and convincing evidence (a higher burden), Depp had to prove that Heard made the defamatory statement either knowing it was false or was highly aware it was probably false.
Let’s start with the first statement, which is the headline. As someone who writes articles for news organizations, like the one you’re reading right now, I can tell you that I never write the headline. Never. I don’t even suggest one. I don’t know if that’s some trade secret I’m not supposed to tell. I guess we’ll know if my editor has left these sentences in this article you’re reading right now.
In my mind, the first statement should have been thrown out because Heard likely didn’t write the headline. Indeed, Heard’s legal team maintained she didn’t write it. But the jurors did not throw it out at all; they found it defamatory.
Even stipulating that she did write it, the headline only says she “spoke up against sexual violence.” It doesn’t say that she’s a survivor of sexual abuse, and abuse at the hands of Depp. There are plenty of advocates for causes that are not survivors of the harms they oppose. While it’s true the jury “must read the statements in the context of the op-ed as a whole,” according to the jury instructions, just because someone “spoke up against sexual violence” or faced “wrath” as a result of speaking out doesn’t mean they are saying they were abused. The jury didn’t see it this way, though.
Let’s go to the second statement: Is a “public figure representing domestic abuse” by implication a survivor of domestic abuse? I think reasonable minds could differ here. The jury concluded it was defamatory.
Finally, when Heard wrote that she saw, “in real time, how institutions protect men accused of abuse,” it’s a tough question whether “in real time” is pointing the finger directly at Depp. It might. Of all the statements, this one, if false, had the best chance of being defamatory.
But Depp’s path to a win wasn’t an easy one. He always had the burden of proof as to every element of defamation. What this verdict means is that the jury found Heard and her evidence completely unbelievable. More than that: It means the jurors didn’t believe Amber Heard was ever abused. Physically or otherwise. Not once.
Because as Heard attorney Ben Rottenborn told the jury in his closing argument: “If Amber was abused by Mr. Depp even one time, then she wins. And we’re not just talking about physical abuse,” he said. It also included “emotional abuse, psychological abuse, financial abuse, sexual abuse.”
He’s right. The jury could have found Heard to have exaggerated. It could have even found her at times not credible. All the jurors needed was one instance of abuse and Depp should have lost. They apparently found none.
But the jury should have concluded that Depp was physically or otherwise abusive at least once. Along with Heard testifying to the abuse, there’s plenty of evidence of abusive, aggressive language and behavior by Depp. A jury should have drawn inferences from that evidence, in which case Depp would have lost. Depp denied the abuse allegations. The jury found him credible.
But Heard should have lost, too. She alleged that Depp lawyer Adam Waldman made the following defamatory statements.
First: “Amber Heard and her friends in the media use fake sexual violence allegations as both a sword and shield, depending on their needs. They have selected some of her sexual violence hoax ‘facts’ as the sword, inflicting them on the public and Mr. Depp.”
Then: “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. … So Amber and her friends spilled a little wine and roughed the place up, got their stories straight … and then placed a second call to 911.”
And lastly: “[W]e have reached the beginning of the end of Ms. Heard’s abuse hoax against Johnny Depp.”
Unlike Heard’s Washington Post op-ed, which doesn’t name names, Waldman clearly identifies Heard and pretty clearly states that she is a liar and a hoaxer.
But this was an uphill battle for Heard for different reasons. First, Depp was the defendant, not Waldman. Depp didn’t make any of these statements; Waldman did. Heard claimed Waldman acted as Depp’s agent, and so Depp should be liable for what Waldman said. If Heard proved that Waldman was Depp’s agent, and he acted within the scope of his agency, then Depp could be liable for Waldman’s statements. But Heard had the burden to prove agency here.
A jury should have drawn inferences from that evidence, in which case Depp would have lost.
In this case, Heard didn’t sue Waldman himself. Why not? Depp’s legal team felt this omission was so strong that it attempted to throw out Heard’s counterclaims entirely on this basis. However, the judge ultimately concluded there was enough evidence to put the matter before the jury.
As with Depp’s claims against Heard, truth was an absolute defense for Depp against the allegations Heard made. But Heard’s counterclaims should have failed in their entirety if the jury thought Waldman (Depp) believed his words were substantially accurate at the time they were published. So why did the jury find that one of Waldman’s statements — the second — was indeed defamatory?
Most likely because it was so factually specific. The more facts alleged in a statement, the more potential for defamation. If any of Waldman’s statements about such details as “spilled a little wine” or “roughed the place up” were false, the jury could have concluded they were defamatory. It seems it did.
And yet, the jury found for both of them, technically. But while both sides “won,” Depp was the overwhelming winner in this case. It’s consistent with the jury believing most of what Depp said and almost nothing of what Heard said. It’s hard to say whether either side will collect on its million-dollar-plus verdict — the judges in the appeal cases that are almost certain to follow might see it more like I did. For now, the only ones who won for certain are the lawyers for both sides.