Culture

Johnny Depp Appeals Defamation Verdict That Ordered He Pay Amber Heard $2 Million—Here’s Why He Could Win

By Jaimee Marshall
·  11 min read
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Johnny Depp filed to appeal one count of his overwhelmingly victorious verdict in a heated defamation battle against his ex-wife Amber Heard that took place earlier this year. In a landmark decision, Depp won every count of his defamation suit and was awarded $10 million in compensatory damages and $5 million in punitive damages in a country whose freedom of speech laws make it virtually impossible to win a defamation suit against a public figure.

However, Heard also countersued Depp for three statements made by his lawyer Adam Waldman in a series of Daily Mail articles. While Depp was cleared of defamation for two of the statements, the final statement was deemed defamatory, and he was ordered to pay Heard $2 million in compensatory damages and no money in punitive damages. Depp understandably wants the bulk of the judgment to be upheld but contests that he is liable for defamation because of a statement that his lawyer made to the press. Let's dive into the details of the appeal and how good of a case he has.

Jury Rulings on the Waldman Statements

The Waldman statements are a series of statements made by Depp’s former lawyer Adam Waldman who represented him in his case against The Sun in the UK for falsely labeling him a wife beater. Waldman, while speaking about ongoing litigation in the UK, made a series of statements to The Daily Mail which appeared in online articles in April 2020. Three statements were the basis of Heard’s countersuit against Depp for defamation, alleging that he should be held vicariously liable for them because Waldman, as his attorney, was acting as his agent. Two statements made by Waldman which referred to Heard and her friends making up an abuse hoax to set up Depp were ruled in favor of Depp, as the jury determined Heard did not prove all elements of defamation.

The first statement they found to be not defamatory was “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,” which appeared in the April 8, 2020 edition of The Daily Mail. Waldman made another statement in an April 27, 2020 article that read, “we have reached the beginning of the end of Ms. Heard's abuse hoax against Johnny Depp," which the jury ruled Heard did not prove the elements of defamation. 

Where things take a turn is with the following, much more specific statement by Waldman to The Daily Mail on April 27, 2020: “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.” He goes on to say, “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.” The jury found that Waldman was acting as an agent for Depp when he made the statement, that it was defamatory, that it was false, and that it was made with actual malice. 

Why Was Depp Found Guilty of Defamation?

Many watching the trial from their homes were perplexed why the jury would rule in Depp’s favor on two counts of similar statements referring to a hoax, but against him on one statement. When you look at the details of the statements, it’s clear that while the jury overwhelmingly sided with Depp and did not believe Heard’s story (essentially affirming that they believe she made up her abuse allegations), it’s the specificity of the unverifiable claims in this third statement that got Waldman in trouble. Waldman doesn’t just make vague or broad claims like in the previous statements. Here, he makes very specific allegations that Heard and her friends called a lawyer, roughed the place up, spilled some wine, rehearsed their stories, and then made another phone call to 911. 

Should Johnny Depp be held responsible for unverifiable claims made by his lawyer?

While Waldman had reason to believe those statements were true, he was never called to the stand during the trial, so the jury never heard evidence to prove that the statements were not made with malice or under the instruction of Depp, let alone if Depp was even aware of the statements. The jury was played a pre-recorded 20-minute deposition in which Waldman repeatedly invokes his attorney-client privilege and refuses to answer any of the defense council’s questions. Waldman is legally obligated to do this to protect his client’s legal privilege unless the client expressly waives the privilege.

Depp Claims Judge Made Several Errors during Trial

Depp was found legally responsible by the jury for statements that his lawyer, not himself, made about Amber Heard in the UK tabloid The Daily Mail in April 2020. However, Depp makes a series of arguments in his appeal that the jury got it wrong due to a number of errors that were made during the trial. Depp’s team harps on three errors that resulted in this verdict. The first is that his motion for summary judgment and motion to strike evidence should not have been denied by Judge Azcarate because Heard did not have enough evidence for her counterclaim to proceed. Second, Depp claims that the judge erred in not allowing Depp’s proposed jury instructions 22, 23, and 24. Third, the judge erred in excluding the bulk of the context of The Daily Mail articles. 

Depp’s Arguments for Appeal

Depp gives several reasons why Heard’s allegations of defamation should not hold Depp legally responsible for Waldman’s statements. Firstly, Depp asserts that Waldman is an independent contractor, not an employee, so he can’t be held liable for statements that he made. There are legal precedents in most jurisdictions in the country that consider attorneys to be independent contractors. Waldman has his own firm and represents many clients other than Mr. Depp. Depp maintains that he had no control over nor any awareness that Waldman ever even made those statements to The Daily Mail until Heard filed her countersuit against him in 2020. Depp argues that because the vicarious liability standard was maintained as the jury’s instructions simply because Waldman was Depp’s lawyer and not because Depp gave him any instructions to make statements about Ms. Heard, his motion to dismiss Heard’s counterclaim should have been granted. Lawyers are rarely considered employees because they exercise their own judgment when representing a client and are held to legal ethical standards outside of the client’s own interests.

Secondly, the burden of proof was on Heard to provide evidence that Waldman acted with actual malice. This is an essential element of proving defamation, but no such evidence was ever presented. As a public figure trying to prove they were defamed, Heard needed to prove that Waldman acted with actual malice by making or publishing statements that he had subjective knowledge that was false or acted with reckless disregard for whether it was false or not. Not only did Ms. Heard never present evidence that Waldman doubted he believed the statements to be false or ever entertained serious doubt as to their truthfulness, but Depp maintains that Waldman believes the statements to be true and has testified at length about the reason why he believes Heard’s allegations to be false and a hoax. In previous testimony, Waldman referred to inconsistencies in her story, testimony from witnesses that contradict her claims, and even filed a claim with the LAPD alleging that Ms. Heard had committed perjury by falsely claiming that Depp had abused her. Waldman supplemented this filing with evidence he believed supported this claim.

Finally, Depp claims that the statements made by Waldman were not actionable because they were a statement of opinion, not fact, which would be clear if they were presented in the full context of the article they appeared in that presented both sides of litigation. Depp argues that the court erred by redacting all context of the article in which the alleged defamatory statement appeared. All text except for the statement in question was redacted, which could give the jury the false impression that the Waldman statement was a statement of fact rather than a reasoned theory of a heated legal dispute in which both sides were presented and which discusses events that Waldman did not claim to have witnessed. 

Jury instructions tell the jury how to apply the legal standard and how to treat the evidence. 

Rather, based on his personal collection of evidence, he reasoned that Amber Heard was committing a hoax against Johnny Depp and presented his theory of how the scenario would have gone down. It provided other quotes by Waldman which referred to this evidence, including “But even this didn’t have the desired effect because two domestic abuse-trained LAPD police would later provide a pair of sworn depositions saying they saw no evidence of a crime.” The article also presented Heard’s side of the story and referred to Waldman’s statements as “fantasies.” The law states that even a provably false statement isn't actionable if it is plain that the speaker is expressing “a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts."

Jurors Improperly Instructed

Depp claims that the judge erred in not allowing Depp’s proposed jury instructions 22, 23, and 24. These instructions would have explained to the jurors what is required to legally hold Mr. Depp responsible for his lawyer’s statements by explaining what an independent contractor is. Jury instruction 22 explained that if the jury found that Depp did not have direct influence on the manner, method, and/or means by which Waldman worked for Depp, then they need to consider him an independent contractor. Instruction 23 explained that an outside lawyer retained by a client in connection with litigation is an independent contractor. Instruction 24 stated that a person who hires an independent contractor isn't liable for their actions. Together, these instructions lay out how if the jury found Waldman to be an independent contractor rather than an employee of Depp's, then Depp could not be found liable for his conduct.

Could Depp Win His Appeal?

Okay, so now we’re familiar with the case and what Depp’s arguments are, but what are his actual chances of overturning this aspect of the judgment? Appeals only deal with evidence that has been presented in court, so even if Depp wants to present evidence that shows the Waldman statements to be 100% true, he cannot do so, and this will not help his case because they were not brought up during the trial. Prominent celebrity divorce attorney Christopher Melcher reviewed the case on Popcorned Planet and believes Depp’s strongest claim has to do with the jurors being improperly instructed. The importance of jury instructions can’t be overstated. This is how the jury is told to apply the legal standard and how to treat the evidence. Entire trials can be lost over how a jury was instructed to make their decision. Melcher argues that because the jury’s only instructions to determine if the Waldman statements were defamatory were that Depp could be held responsible for Waldman’s statements if he was acting as an agent and if he had express or implied authority to make the statements that this was not enough information for the jury to understand the legal standard for doing so. 

The instructions also explain to the jury what an agent is, "an agent is the person who is subject to the power or right of a principal to control the means and methods of performing the work." While this instruction is similar to the proposed instructions by Depp’s team, Melcher isn’t so sure that they were clear enough for the jurors to understand how they would be applied to a client/lawyer relationship. Depp could win if the appellate court decides that the jury should have been instructed that lawyers are considered independent contractors who are not expressly controlled by their clients because they determine on their own how they are going to represent their clients. Melcher believes Depp’s other arguments are weaker and even the claim that jurors weren’t properly instructed may not hold up if the appellate court determines that the instructions given by Judge Azcarate were sufficient.

Closing Thoughts

Depp’s best case seems to be that the jurors were improperly instructed on how to determine if Depp can be held liable for his lawyer’s statements. If he’s successful in his appeal, he will no longer owe Heard $2 million and the judgment will be a complete victory against his ex-wife. Heard has already filed for appeal to overturn the judgment against her as well. However, considering her arguments rest on supposedly existing evidence that wasn’t submitted to the court, this is much less likely to succeed. 

Depp never should have been held responsible for statements that he didn’t make and wasn’t aware of. It’s worth noting that, in his appeal, Depp’s team makes it clear that neither Judge Azcarate nor the jury was biased against him. They actually expressly state that the jury overwhelmingly favored him, only that they had difficulty understanding the legal standard on specific issues. I think this argument should hold up, considering when it came time to reveal the verdict, the jurors had left the award amounts for both parties blank, causing immense confusion in the courtroom and requiring the jurors to return to the deliberation room to fill it out.

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