AAfter Johnny Depp overwhelmingly won his defamation case against Amber Heard, his lawyer Elaine Bredehoft announced that her client “absolutely” intends to appeal.
The jury of five men and two women announced on Wednesday June 1 that they had concluded that Ms Heard had defamed Mr Depp on three statements. Jurors also found that Ms Heard had been defamed by one of three statements in her countersuit.
The Independent spoke to three lawyers about Ms Heard’s possible grounds for appeal, or even a new trial: Lisa Bloom of The Bloom Firm, whose clients included Janice Dickinson, Mischa Barton and several victims of Jeffrey Epstein; Jesse Weber, host and attorney for the Law & Crime Network, who covered the trial from the courthouse in Fairfax, Va.; and Mitra Ahouraian, a Beverly Hills entertainment attorney who represents actors, directors, producers and musicians.
The phrasing of Amber Heard’s editorial
Ms Bloom saw several appealable issues in the Depp v Heard verdict, starting with the wording of the 2018 Washington Post editorial from which Mr. Depp’s defamation allegations arose.
“Because of the First Amendment, the specific words [of a given statement] are being watched closely,” she said. “Here, Amber Heard only said that she was a public figure representing domestic violence. In my opinion, that means that even if she was the victim of domestic violence only once, the statement is true and the case is over She didn’t have to gain that she was the victim of multiple incidents, even major incidents, just domestic violence of some kind.
Ms Bloom pointed to the fact that Ms Heard ‘never even named’ Mr Depp in the op-ed, meaning ‘the appeals court can say the comment wasn’t specific enough to overcome its rights to the First Amendment”.
One of the three statements in Mr Depp’s trial is the title of the editorial, which is another potential problem according to Ms Bloom.
“[Ms Heard was found guilty of defaming him based on a headline 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. Are they held liable for defamation if the article is inaccurate?”
Ms Bloom also saw possible problems in the way jurors awarded damages: after first announcing they had a verdict, they were dismissed because it appeared they had failed to award all or part of the necessary damages. They returned shortly after awarding Mr. Depp $15million and Ms. Heard $2million. (Judge Penney Azcarate adjusted Mr. Depp’s damages award to comply with a state cap; he was actually awarded $10.35 million.)
The timing of the damages award to Ms Bloom ‘seems very sloppy’, and it’s an issue she would raise on appeal.
Possible evidentiary issues
Mr. Weber pointed to statements made by Ms. Bredehoft in post-trial interviews as he sought to outline possible strategies for Ms. Heard’s legal team.
“The arguments on appeal focus on what Heard considers to be incorrect legal rulings by the judge. That’s why it’s so important to make objections and motions during the trial to preserve those issues on appeal,” he said.
“Based on Elaine Bredehoft’s comments after the verdict, it appears they will focus on evidence that was ‘suppressed’ at trial, such as medical records, and possibly prejudicial evidence from [Mr Depp] was allowed to be presented. It also seems [Ms Heard’s team] challenged the fact that the British decision, in which a judge found several cases of abuse by [Mr Depp]could not be presented to the jury.
Mr. Depp continued The sunin 2018 under a title that called him a “wife beater”. A judge ruled against him in the UK case in 2020.
Lawyers for Ms Heard “could also argue that there were issues with the jury/jury instruction form,” Mr Weber added.
Ms. Ahouraian underlined the fact that “an appellate judge does not re-examine the facts and question the verdict of the jury”.
“An appeals judge considers whether there was an error of law which resulted in an unfair decision, for example, whether the judge made a serious error, for example in excluding relevant evidence,” she said. declared.
“[Ms Heard]Lawyers argue that relevant evidence that could have affected the outcome of the case has been excluded. Some of this evidence ended up in the UK trial against The sunwho [Mr Depp] lost, and did not participate in this trial, which makes his argument understandable, but the laws there are of course different.
An “inconsistent” verdict
In an interview with BBC NewsnightMs Bloom described the verdict in Depp v Heard as “inconsistent”, due to the way the jurors found that Mr Depp and Ms Heard had been defamed.
Jurors found Mr Depp defamed in Ms Heard’s op-ed in which she describes herself as ‘a public figure representing domestic violence’, but also found Ms Heard defamed in a statement by Adam Waldman (a former lawyer for Mr Depp) calling some of Ms Heard’s claims a “hoax”.
“How come Amber Heard was defamed when Johnny Depp’s lawyer said her allegations were a hoax, and yet Johnny Depp was also defamed when she said she was portraying violence domestic ?” Mrs. Bloom asked about the program. “I think it’s inconsistent, and you can’t have an inconsistent verdict.”
Mr Weber expressed doubts whether this could prove to be a strong ground for appeal, as ‘generally appeals are not about the jury’s decision per se’.
He also pointed to the specific statement that jurors found defamed Ms Heard. It was a statement in which Mr. Waldman said, “It was just an ambush, a hoax. They tricked Mr. Depp into calling the cops, but the first attempt didn’t work. Officers came to the penthouses, searched and questioned them thoroughly, and left after finding no facial or property damage. So Amber and her friends spilled some wine and roughed up the place, got their stories straight under the guidance of a lawyer and a publicist, and then made a second call to 911.
For Mr. Weber, the verdict is not necessarily inconsistent. “The jurors basically said we don’t believe [Ms Heard] was telling the truth about her experience with Johnny Depp being an abuse survivor, but we also believe that [Mr Depp]’s attorney, who acted as his agent, went too far and falsely stated that [Ms Heard] and his friends staged the scene of an alleged attack,” he said. “They might believe Heard hadn’t been punched in the face with a cellphone as she claimed in May 2016, but they also didn’t believe her friends helped create a prank cover-up attack.”
The jurors were not sequestered during the seven weeks of the trial. They were instructed not to read the case or do any outside research, but the length of the proceedings, coupled with the fact that it was broadcast on TV and widely discussed online, raised questions as to whether jurors could have remained isolated from any trial-related content.
“[Ms Heard’s team] could even try to show that since the jury was not sequestered, it was exposed to all Depp fans and media scrutiny and that tainted the verdict,” Weber said, adding that seems to be “a major problem for [Ms Heard]the team on appeal”.
“On the one hand, of course, you might wonder how they couldn’t have been exposed and tainted by the coverage, the crowds, the social media,” Weber said. “On the other hand, it’s speculative. They’ve been instructed not to view any outside material or watch anything relating to the trial. Unless a juror does an interview and says something to this subject, or unless [Ms Heard]The team may present evidence of juror misconduct, at this time it is a speculative argument and unlikely to succeed.
Ms Ahouraian pointed to the judge’s decision not to sequester the jury.
“It makes sense that the jury in a high-profile case like this would be placed under receivership, not just ‘instructed’ not to go on the internet or speak to anyone about the case,” a- she declared. “It’s not realistic in a case like this: people go 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 emails or something seemingly innocuous, some information came to light.
Although Ms. Ahouraian acknowledged this possibility, and the fact that it “could have strongly influenced the outcome and made the trial unfair”, she is not sure that this would constitute a legal error, “since I do not know if anyone one could have predicted the level of attention on social media and the vitriol people directed at [Ms Heard].”
“However, if a juror did watch online and actually heard or saw something despite the judge’s order, that could be grounds for a mistrial,” she added.
Ms Bloom suggested that potential problems with the jury could lead to an appearance or even a new trial, but acknowledged similar difficulties.
“She would have to prove that interference, which would be difficult,” she said. “Maybe a juror will talk about it in a press interview. I will monitor this. Stay tuned!”