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Why Johnny Won: An Explanation Of The Jury’s Decision In Depp v. Heard

Examining the decision strictly on legal grounds, it is understandable why the jury decided in Depp’s favor.

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(Photo by KEVIN LAMARQUE/POOL/AFP via Getty Images)

Johnny Depp sued Amber Heard for defamation after Heard published a 2018 op-ed in the Washington Post wherein she described herself as a victim of domestic abuse. Depp claimed that the op-ed was disparaging and damaged his career. Heard subsequently countersued for defamation. Depp won his lawsuit, with the jury awarding him $10 million in compensatory damages and $5 million in punitive damages (immediately reduced to $350,000 per Virginia’s statutory cap on punitive damages). Heard lost the bulk of her countersuit, with the jury only awarding her $2 million in compensatory damages for statements made by Depp’s attorney. Despite the $2 million award, it is universally agreed that Johnny won.

While reporters, columnists, and pundits have erupted in debate over the jury’s decision, much of the debate surrounds theories of sexism, misogyny, power dynamics, and whether this is the end of #MeToo. However, examining the decision strictly on legal grounds, it is understandable why the jury decided in Depp’s favor.

In Virginia, a plaintiff in a defamation case must prove the publication of an actionable statement with the requisite fault on the part of the defendant. To be “actionable,” the statement must be a false statement of fact that harms the plaintiff’s reputation in the community or deters others from associating with him or her.

Because Depp is undeniably a public figure, he had to prove that Heard acted with “actual malice,” a higher standard of proof than the negligence standard that private individuals have to meet. Thus, Depp was tasked with convincing the jury that Heard knew her statements were false or acted with a reckless disregard of their falsity.

There were three statements in Heard’s op-ed that Depp alleged to be defamatory:

“I spoke up against sexual violence — and faced our culture’s wrath. That has to change.”

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“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.”

“I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”

When a jury determines a verdict, they are given jury instructions, which are written by the judge and meant to keep the jury on track regarding the substance of the law on which their decision is based. One of the jury instructions in this case asked the jury to consider the publication as a whole, reading the statements in the context of the op-ed, rather than parsing the statements word by word or phrase by phrase. That is how this case, which could have been a strict examination of statements to determine their individual meanings, turned into a case of each side trying to provide they were abused and had never abused the other.

Heard’s attorney, Ben Rottenborn, summarized this goal 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. He also included “emotional abuse, psychological abuse, financial abuse, sexual abuse.”

Thus, in determining Depp’s claims against Heard, the jury was tasked not only with determining the meaning of the op-ed, whether the op-ed was about Depp, and whether Depp suffered damages as a result of the op-ed, but also — and perhaps primarily — whether Heard was abused.

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As I mentioned, the actual malice standard is a very difficult one to meet. Courts have widely addressed the issues of admissibility of evidence in defamation cases, allowing for the admission of all relevant evidence, including direct evidence of state of mind and surrounding circumstances. The U.S. Supreme Court has recognized same in the prominent defamation case Herbert v. Lando, 441 U.S. 153, 165 n.12 (1979):

The existence of actual malice may be shown in many ways. As a general rule, any competent evidence, either direct or circumstantial, can be resorted to, and all the relevant circumstances surrounding the transaction may be shown, provided they are not too remote, including threats, prior or subsequent defamations, subsequent statements of the defendant, circumstances indicating the existence of rivalry, ill will, or hostility between the parties, facts tending to show a reckless disregard of the plaintiff’s rights, and, in an action against a newspaper, custom and usage with respect to the treatment of news items of the nature of the one under consideration.

Not only was the jury presented with a lot of evidence, they were also provided with a jury instruction regarding the credibility of witnesses, including the witness’s memory, interest in the outcome of the case, potential bias, whether evidence was contradicted by a witness’s testimony, etc. I believe it was the contradictions in particular that swayed the jury in favor of Depp. Below is a sampling of the contradictions presented to the jury regarding Heard’s allegations of abuse.

Heard had alleged that Depp had assaulted her in their penthouse, resulting in physical injury and property damage. The LAPD officers who responded immediately after the alleged incident testified that they had seen so no signs of injury or property damage. Although Heard had claimed that Depp spilled wine in the hall, police bodycam footage showed no spilled wine, nor the other property damage Heard had claimed. Witness Isaac Baruch testified that he saw Heard within hours of the alleged assault and saw no injuries. Witness Alejandro Romero, who worked in the former couple’s building, testified that when he saw Heard the day after the alleged incident, he did not see any injuries.

The next day, Heard went to court in order to request a restraining order against Depp. At that point, she had a bruise visible on her face. However, multiple witnesses and bodycam footage contradicted the existence of a bruise or any other visible physical injury to Heard. Heard had testified that she did not know the media would be at the courthouse when she arrived. However, witness Morgan Tremaine, a former TMZ employee, testified that he was alerted to the fact that Heard would be at the courthouse, with a bruise on the right side of her face. He also testified that he was advised Heard would stop and turn toward the camera to display the bruise on her face. The day after her visit to the courthouse, Heard was photographed smiling with a friend. In the photograph, there is no bruise visible on Heard’s face.

Heard also alleged that Depp assaulted her with a bottle while the pair was in Australia. Depp alleged that during that encounter, Heard threw the bottle at him, severing part of his finger. Heard claimed that Depp’s finger was severed when he smashed a phone into the wall. However, photographs of the scene showed no such smashed phone in the room. Depp underwent extensive medial treatment for his injury, while Heard did not receive any medical treatment for her alleged injuries. Furthermore, in a prior deposition, Heard’s acting coach testified that Heard told her Depp’s injury was sustained when he broke a bottle.

Heard further claimed that Depp abused her in a trailer they rented at the trailer park getaway called Hicksville. Heard testified that Depp became enraged while both parties were on drugs. Specifically, Heard testified that after her friend cuddled with her, Depp grabbed the woman’s wrist and threatened to break it. Heard claimed that Depp then began smashing things inside the trailer, causing significant property damage. However, two witnesses, Heard’s acting coach and one of her friends, both testified that Depp yelled at Heard but did not grab anyone. Heard then testified that the manager of the property had gone inside the trailer and was furious to see the property damage. However, the manager testified that the trailer wasn’t trashed. Only a light was broken.

Heard alleged that she hit Depp for the first time after he physically assaulted her and tried to push her sister down the stairs. In that testimony, Heard stated that all she could think about was Kate Moss, implying that Depp had once pushed Moss down a flight of stairs. Heard’s testimony on this alleged encounter was contradicted in a few ways. Her sister’s account of the event differed from Heard’s, including the parties’ positioning on the stairs and whether Depp had assaulted Heard during this encounter. Security guard Travis McGivern testified that Heard hit Depp without provocation but did not see Depp hit Heard. The most public testimony on this issue came from Moss herself who testified that Depp never pushed her down any stairs. That testimony was relevant as it implies Heard’s alleged justification for hitting Depp was false.

Although some of these contradictions may seem benign, as they speak to details like spilled wine or where the parties were positioned on a staircase, the more contradictions a jury is presented with, the less credible they find that particular party — in this case Heard. Furthermore, these contradictions are in addition to the recordings of Heard admitting to physical violence:

“You didn’t get punched. You got hit.”

“I’m sorry I hit you like this, but I did not punch you. I did not fucking deck you. I fucking was hitting you. I don’t know what the motion of my actual hand was. But you’re fine. I did not hurt you. I did not punch you. I was hitting you.”

“Tell the world, Johnny, tell them ‘I, Johnny Depp, a man, I’m a victim, too, of domestic violence … and it’s a fair fight.’ And see how many people believe or side with you.”

At the end of the day, in order to win his case, Depp had to prove several elements to meet the standard for a defamation claim, which I believe he had indeed proven. He proved that Heard was the author and communicator of the statements at issue. She did not deny writing the op-ed, and while she did deny writing the headline, she communicated the headline herself in a tweet.

Depp was tasked with proving to the jury that the statements were about him. Heard’s own testimony and the entirety of the testimony and evidence presented at trial made clear that Heard was referring to Depp in the op-ed.

Depp further proved the statements caused him to suffer financial damages due to the film roles he lost.

Most importantly, Depp had to convince a jury that the statements in the op-ed were false. At the end of the day, the numerous contradictions between Heard’s allegations and the testimony of witnesses, Heard’s own testimony, expert testimony, and physical evidence was sufficient to convince the jury that the complained-of statements were false.

The other issues being hotly debated at the moment may certainly be worth discussion and are by no means insignificant. However, the question of how a jury could have found in favor of Johnny Depp can be answered by looking carefully at the law and the case he presented.

Ed. note: We have become aware of accusations on Twitter by attorney commenter Natalie Whittingham-Burrell of plagiarism regarding this post. Obviously, we take accusations of plagiarism extremely seriously. Both of the pieces at issue here are among the hundreds of analyses of the same high-profile lawsuit and as such inevitably overlap in the discussions of points of law and disputed facts. Side-by-side reading of both pieces rules out any question of actual plagiarism. We invite our readers to see to decide for themselves by reading Whittingham-Burrell’s piece here. Further, we have the receipts: our writer sent a draft of her column to her firm’s media manager on June 3 at 2:12 a.m., predating the publication of Whittingham-Burrell’s Medium piece by several days.

Diana-Warshow_0923D-Web (3)Diana Warshow is Senior Counsel at Nesenoff & Miltenberg, LLP in New York, NY. Practicing law since 2008, Diana’s work focuses on defamation and Title IX law. She represents clients in libel and slander claims against media companies, written publications, tech companies, blogs, and social media sites. She also represents students in disciplinary proceedings at high schools, colleges, and post-graduate institutions around the country. You can reach her by email at DianaWarshowEsq@gmail.com and connect with her on LinkedIn.

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