The massive verdict in favor of actor Johnny Depp yesterday constitutes a rare victory of a public figure under the difficult New York Times v. Sullivan standard for defamation. The award of $15 million found that Amber Heard not only lied but did so with malice. Depp ran the table on all of his counts. While this case will likely be studied for years, the one verdict in favor of Heard is itself notable because it was based on defamation by counsel — a lesson for lawyers in defending their clients in public.
Even with the reduction of the $5 million in punitive damages to $350,000 under the statutory state cap for punitive damages, Depp was technically awarded $10,350,000. With the reduction of $2 million to Heard, that still leaves $8,350,000 — more than the $7 million that he gave up in the divorce. That money was pledged to charity by Heard but she has been accused of failing to fulfill that pledge.
Of course, these awards will be subject to motions for reduction or remittitur.
In a case that turned almost entirely on the credibility of the parties, the jury clearly found a lack of credibility in Heard and an abundance of culpability.
It is also striking how Depp’s lawsuit in the United Kingdom failed but he prevailed in the United States. The defamation laws are far more advantageous for defendants in the UK and most plaintiffs try to litigate such claims in the U.S.
There are a number of novel elements to this defamation case. However, it was Heard’s verdict that struck me most as particularly noteworthy.
The one statement in Heard’s countersuit that was found to be defamation was not made by Depp but his agent Adam Waldman. Waldman is also an attorney but appears to have been acting in his capacity as Depp’s agent. In April 27, 2020, Waldman told the U.K. Daily Mail:
”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. The officers came to the penthouses, thoroughly searched and interviewed, and left after seeing no damage to face or property. So Amber and her friends spilled a little wine and roughed the place up, got their stories straight under the direction of a lawyer and publicist, and then placed a second call to 911.”
Attorneys are protected by absolute privilege in court in making harmful and even false statements. This privilege is best stated in the Restatement of Law (Second) of Torts section 586 “to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceedings.”
However, it also ruled that “statements made during an occasion outside a judicial proceeding are not covered.” Thus, while “[t]he duties and actions of a lawyer in representing a client are not confined to judicial proceedings,” the court ruled that interviews with a reporter would fall outside of the privilege. Most courts simply reject the notion of an absolute privilege while considering a more limited possible privilege for out-of-court statements. See Kennedy v. Cannon, 229 Md. 92, 182 A.2d 54, 58 (1962) (the “absolute privilege will not attach to counsel’s extrajudicial publications, related to the litigation, which are made outside the purview of the judicial proceeding”).
This was a statement made outside of court and subject to defamation challenges. The statement had a number of elements that stand out. First, it was highly specific on its factual allegation of acts done by Heard and her staff in allegedly staging the room. Second, it was very clear that this was an intentional and coordinated act. Finally, it was not expressed as speculation or an opinion but a fact.
The verdict will serve as another cautionary tale for counsel in these cases. Ironically, it was not the statements of Depp but his counsel that crossed the line in this case.
34 thoughts on “Depp-Heard Verdict Contains Relatively Rare Defamation-by-Counsel Liability”
Those experiencing “long TDS” see a criticism choice between two Hollywood entertainers and thinks… Trump.
According to the verdict, Johnny Depp never defamed Amber Heard at all, but was rather the victim of abuse and defamation. It was his agent who was found defamatory when he conjectured that Amber Heard wrecked her own place. While there was evidence that Heard lied about her injuries, and her abusive behavior, there was no evidence that she alone trashed her own apartment.
The question remains whether Johnny Depp will, or even should, have anything further to do with the Pirates of the Caribbean franchise, after Disney dropped him without an investigation.
I think Heard’s case went down the crapper (so to speak) when it was revealed that she defecated in his bed on purpose for revenge. What sort of sick person does something that disgusting?
Wait! Hold the presses!
just referred to another party as “sick!”
Now there is some “expert” testimony.
NUTCHACHACHA knows mental pathology, top to bottom, inside and out.
George, don’t presume ‘your’ mental state is beyond question. Because it is, indeed, a source of speculation.
Ah, and then there is the courage of anonymity.
Hillary Clinton defecated on the FBI/DOJ using Sussman, the Steele Dossier and the Alpha Bank hoax for revenge.
IN THE CIRCUIT COURT OF FAIRFAX COUNTY
Depp v. Heard
Judge and Jury Accept and Validate Clear and Manifest Facts
COURT OF THE DEEP DEEP STATE
FOR THE DISTRICT OF COLUMBIA
U.S. v. Sussmann
Judge and Jury Reject, Nullify and Void Clear and Manifest Facts
A question about the trial that I haven’t heard addressed and that some reader here may know the answer here: Who pays legal fees, and how high were they likely to be?
I’d say you’re looking at legal fees above 2 million per side and costs of over 1 million per side. Amber is gone financially and Depp cleared maybe 4 million. Lunch money for Capt. Jack Sparrow.
Nobody won this case except counsel for the parties. Both Amber and Johnny left the courtoom figuratively bleeding profusely from self-inflicted wounds despite the political use of the jury’s result. The best you can say is they truly deserved one another.
Oh by the way, Amber says she has no money to pay the judgment or the appeal bond. Herlegal defense may have been paid by homeowners coverage but there’s likely a cap on that. Many times teh insurer won’t pay the claim if malice is established making it an intentional tort rather than a negligent one. Lots of good stuff there.
She apparently claimed poverty as why she failed to honor her word to donate her divorce settlement to the ACLU.
Naw. Johnny Dep clearly won. Even if these high sums are not much for someone as rich as Depp, he won in the court of public opinion as well, and acquitted himself of the accusation of a being a wife beater.
As it has been noted, you can come back from being a drug addict and general sad sack, but these days a wife beater will get you cancelled on many fronts.
Plus, he did get back all of his divorce settlement.
“Attorneys are protected by absolute privilege in court in making harmful and even false statements.” – Why is this?
The lawyers write the laws.
The laws say, “Send all the money to the lawyers.”
To allow for the full advocacy and candor of all litigants during court proceedings.
That could not be if everyone is second guessing what they want to say for fear of retaliatory liable.
Because they are independently subject to sanctions from the judge and discipline from the Barr for their conduct in court.
This is great to see. But, we need rapid-response defamation courts, a reversal of Sullivan, and repeal of Section 320 to bring us back to the self-discipline and civility of the early Republic — when dueling for your life was a possible consequence for deceitful character assassination.
Dueling was not legal and, occasionally, prosecuted.
“…Self-discipline and civility of the early Republic…”
I LIKE it!
The early republic did not consist of a welfare state to any degree.
The early republic existed in Freedom and Self-Reliance.
The entire communistic American welfare state is unconstitutional including, but not limited to, matriculation affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, welfare, food stamps, minimum wage, rent control, social services, forced busing, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.
Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual welfare, specific welfare, particular welfare, favor or charity. The same article provides Congress the power to regulate ONLY money, the “flow” of commerce, and land and naval Forces. Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the power to “take” private property for public use.
Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while it is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure only.
From Jonathan Turley.org said:
“… Attorneys are protected by absolute privilege in court in making harmful and even false statements. This privilege is best stated in the Restatement of Law (Second) of Torts section 586 “to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceedings.”
However, it also ruled that “statements made during an occasion outside a judicial proceeding are not covered.” Thus, while “[t]he duties and actions of a lawyer in representing a client are not confined to judicial proceedings,” the court ruled that interviews with a reporter would fall outside of the privilege. Most courts simply reject the notion of an absolute privilege while considering a more limited possible privilege for out-of-court statements. …”
SO how does this compare to Michael Sussmann Atty. (and Other et.al. whom lied with malice) making statements about Trump Russian Collusion, outside the Rotunda?
Trump’s campaign DID feed polling information to Russian hackers, and that’s how he cheated to defeat the will of the American people in 2016 by “winning” the Electoral College while losing the popular vote. It has been proven, and no matter how many times Trump, Hannity, Tucker and Levin call it a “hoax”, it’s the truth.
He gave public polls to a Russian. No proof that is the Russian Goverment. No crime.
Shaking my head at people who are still desperately trying to promote the Russia hoax. If they had any integrity at all, they’d apologize.
I am thinking that Trump has included them/him in his lawsuit.
I think it’s a great precedent. Men in these situations almost always have little to no recourse without the funding of a Hollywood career, and if they do get to court, the system nearly universally favors women. While it’s true, there are less male victims, given that nearly ALL of them suffer in silence with no one advocating for them, it evens things out a tad. And sadly, these guys (I was one) often enable behavior out of a sense of nobility in addition to fear. Obviously there are unwell people and exceptions, but this is the story of many men.
Perhaps the Good Professor might think about his views on comments by other Professors outside the Classroom and outside any research reports or analysis of statistics that they engage in doing that should not be protected speech as he insists is the case.
Academia should embrace the same notion the Court’s do in that regard…..protect that speech that is part of the Professor’s academic work….but leave vulnerable to any speech that is that of any person not in Academia.
That would put calls for violence and accusations of racism and other radical speech in the same class as when non-Professors make such comments.
Academic research and analysis must withstand Peer Review and be based upon non-biased accurate data and analysis and should be protected speech.
Professors voicing mere opinion not based upon such evidence….are no different than a truck driver talking over a cup of coffee.
Just because you are a “Professor” does not in any way provide you carte blanche to say anything you want and it be protected speech.
Peer review has come to be regarded as some sort of gold standard. That is not the case. In all too many cases peer review is more akin to pal review. The true gold standard is replication. See some of the work of John Ioannidis of Stanford for shocking accounts of the number of peer-reviewed medical papers that fail replication and should be withdrawn.
In all too many cases peer review is more akin to
The New England Journal of Medicine was once the gold standard as to medical peer review journals. Now, they are the medical Woke peer review. I receive their weekly issue via email and I often delete them without checking the newest issue. Insufferable is putting it lightly.
Daughters’ Keeper — The Care and Treatment of Black Girls in America
Mind you blacks comprise ~12% of the US population while Hispanics comprise ~20%. Plus, we Hispanics come to this country with minimal or no English speaking skills, minimal educational pedigree, no family members awaiting us, no job skills and with only the clothes on our backs. Blacks, OTOH, have been here for centuries, benefited from English language, free educational offering, plenty of opportunities to learn job skills, and they have enjoyed having vast numbers of members added to their families and growing their peer network. IOW, this NEJM piece is not science, not in the purview of what physicians do, and is promoted because it is part of the Woke peer review system. Annals of Internal Medicine is even worse.
All in all Latinos don’t demand “justice”, “diversity, equity, inclusion” because we figure having freedom, an opportunity to get ahead, and the right to freedom of religion are just dandy. We dont NEJM or the woke peer journals.
You don’t think a psychiatrist should write about his experiences including cases studies with psychiatric assessments in a journal of medicine for any sub-group? You’re either an idiots or too blinded and triggered by your racism to bother to read what is an informative article. Thanks for sharing it. Btw, don’t pretend you get a pass from racism because your LatinX.
Being a professor does not make speech protected.
Being a person does.
Political speech is inherently the most protected form of speech there is.
The default is that speech is protected.
Near universally speech is protected.
Speech that is not protected is incredibly rare, and falls into an incredibly narrow realm.
Those suffering from “long TDS” see a defamation decision between two Hollywood actors and thinks…Trump.
This has a lot of implications for suits by Dominion voting systems and various individuals against Sydney Powell and Rudy Guiliani. They really just promoted a bunch of conspiracy theories at press conferences and named people and companies without doing any sort of investigation.
I have not heard than any of those cases are going anywhere. Nor do I expect them too
Defamation law is complex. Truth is always a defense, and defendants are always free to seek evidence their assertions are truth.
If DVS wishes to proceede with Defamation claims it will subject itself to massive discovery. While that MAY prove that the allegations against DVS are false, it still could expose problems very damaging to DVS.
We know from GA and WI audits that DVS systems have WAY TO HIGH a failure rate – thousands of times what is allowed by law. In WI and GA that allegedly resulted in biased election officials tilting the count.
That allegation has neither been confirmed nor disproven in either state. But in AZ that claim has been disproven. Whatever the problems with DVS systems they did not change the count in AZ.
However Known flaws in DVS systems did alter the count – significantly in NH, but they did not alter the outcome and the error was in a down ballot election not the president. Regardless, it was error, and it was serious error that very nearly flipped an election.
There are other issues with DVS systems specifically and electronic voting systems generally that have come to light in the past 2 years. The AZ audit did find the DVS systems TRIVIALLY hackable,
Several subsequent investigations have found pretty much all electronic voting equipment is highly vulnerable to hacking. Most of it is hackable by script kiddies – amaturers. But All of it is hackable by serious black hats. There are numerous bodies recomending that Only Paper voting be used in an election – and that electronic ballot counting MUST have proper randomized security audits to assure that any of a variety of potential problkems aside from hacking and fraud can not occur.
We will see what actually happens, but I suspect the DVS defamation lawsuits will quietly die.
I would further note the Depp herd lawsuit proceeded because BOTH had nothing to lose and everything to gain.
Both were unemployable, and nothing short of a big win would change that. Even having won – Depp remains unemployeable – though he did create the opportunity to get his life in order and return to his very lucrative work.
But even that came at a price. No one came out of the Depp-Herd trial looking good.
And defamation claims by individuals are less dangerous than those by businesses,
For DVS the damage has been done. It is unlikely a defamation trial will raise their stock value and every possibility that even one they win will lower it.
Kyle Rhittenhouse is likely to sue – he has nothing to lose and everything to gain.
But DVS is highly unlike to take this through discovery.