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.