Depp v. Heard offers some unsettling legal insights

By Leisa Boley-Hellwarth

As I write this column, the jury is deliberating in John C. Depp, II v. Amber Laura Heard, a defamation action in Fairfax County, Virginia. I have no interest in this litigation, but my Google news feed insists on keeping me updated. A quick look at this case, however, can offer some important insights into our legal system.

Defamation is the action of damaging the good reputation of someone through slander (oral) or libel (written). In other words, defamation is a false statement presented as a fact that causes injury or damage to the character of the person it is about. An agricultural example is “Tom Smith stole livestock from his neighbor.” If this is untrue, and if making this statement damages Tom’s reputation or ability to work, it is defamation.

The elements of defamation are (1) a false statement purporting to be fact; (2) publication or communication of that statement to a third person; (3) fault; and (4) damages.

Some background information about the parties is essential to understanding the case. Both Depp and Heard are film actors who were previously married from 2015 to 2017. In fact, Depp left his long-term relationship with Vanessa Paradis, of 14 years, to be with Heard. In an interesting twist, Paradis provided testimony on behalf of Depp during the trial. The case ultimately boils down to whether the jurors believe Mr. Depp or Ms. Heard. Does that mean the best actor wins?

In many ways, this case is another divorce proceeding dressed up as a defamation case. And I’m betting regardless of who wins, that more lawsuits or appeals are coming. Does someone need to explain that sequels are usually a bad idea?

On April 22, 2022 this trial began and continued for 6 weeks. Both legal teams have alleged physical and verbal abuse from the other party. What is mystifying is why Heard’s lawyers, rather than focus the jury’s attention more fully on the elements needed to prove a defamation case, instead allowed themselves and their client to become bogged down in the couple’s each and every fight and disagreement. And all of this drama has been streamed live. Talk about airing dirty laundry.

The case began when Depp sued Heard for three counts of defamation for $50 million in damages from Heard, who is counter-claiming for $100 million. Previously accused by Heard of intimate partner violence, Depp sued his ex-wife in February 2019 over an op-ed she wrote which was published by The Washington Post in December 2018. Depp blamed Heard’s op-ed for extensive financial losses to his career and claimed it damaged his ability to profit from his vocation. In the op-ed, Heard had described becoming a “public figure representing domestic abuse” and “seeing in real time how institutions protect men of abuse.”

Please note that Depp did not sue The Washington Post. Some legal experts have speculated that Depp did not wish to fight with Jeff Bezos, who owns The Washington Post.

Depp’s threshold for proving defamation, like all cases involving public figures, is high. Depp has to show that not only was what Heard wrote false, but also that it was written in an act of actual malice, defined as bad will or the desire to do bad things to another person. An example of malice is when you hate someone and want to seek revenge. All Heard has to show is that what she penned about having endured domestic abuse, which can take many forms, was a true statement.

The real question before the Court is will the jury be able to push aside the thick-fogged circus and spotlight the real legal principle at hand? In order for Depp to prevail, the jury of seven must reach a unanimous decision. The “true” winner of the case is whoever has dominated the court of public opinion.

When I first started practicing law, a battle-weary attorney gave me some advice. Never get into a urinating match with a skunk. Even if you win, you still stink.