‘Actual malice’, strong testimony, and the court of public opinion: What attorneys say about the Depp v Heard trial

Johnny Depp set out on a complicated legal path when he sued Amber Heard for defamation. The lawsuit opposing him and Heard in Fairfax, Virginia, which has unfolded over the course of the past four weeks, centres around an op-ed Heard wrote in 2018 for The Washington Post. Heard doesn’t name Depp in the piece but describes herself as “a public figure representing domestic abuse”. Depp and his legal team have contended that the op-ed rests “on the central premise that Ms Heard was a domestic abuse victim and that Mr Depp perpetrated domestic violence against her”, which they say is “categorically and demonstrably false”.

Depp has taken the witness stand in the case, as has Heard. Her testimony is expected to pick up again when the trial, currently on a one-week hiatus, resumes on Monday (16 May). Testimony has focused on the alleged facts of Heard and Depp’s marriage, with Depp and Heard sharing their respective sides. One incident in Australia has been a repeated point of discussion. Depp has alleged that Heard severed his finger that night, while she has alleged that he sexually assaulted her with a bottle then cut his finger at a different moment during which she was not awake.

In discussions with The Independent during the fourth week of proceedings, three attorneys highlighted the high standard Depp must reach if he hopes to win his defamation case – the same standard Heard must also meet if she wants her countersuit against Depp to be successful. They also pointed to the ultra-public nature of the trial, and the potential gap between the opinions of viewers following the proceedings online and those of jurors, who are prevented from reading up on the trial while it happens.

As a public person, Depp, like all famous people in the US, is held to a high standard when it comes to proving a defamation claim. If he is to prevail, he must show that Heard acted with “actual malice” when she wrote her 2018 op-ed. In this case, it means his team must show that Heard knew what she was writing was false, or that she acted with a reckless disregard for the truth.

“He has to demonstrate that Amber Heard behaved with actual malice against him, ie, that she’s lying,” says Alex Wade, a media litigation lawyer and a partner at the Wiggin law firm in the UK. To Wade, Depp’s alleged drug and alcohol use (which Depp has discussed in his own testimony, alleging that Heard “grossly embellished” his substance use) could be an issue of credibility for the jury.

Heard has filed a countersuit against Depp. His complaint lists three counts of alleged defamation on Heard’s part and asks for $50m in damages. Her countersuit lists a count of “defamation and defamation per se” (defamation per se occurs when someone makes a statement so harmful to another person’s reputation that it can be presumed to have been defamatory) and count of violation of the Virginia computer crimes act, which proscribes “harassment by computer”. She has asked for $100m in damages.

If Heard wants to prevail in her countersuit against Depp, she is held to the same standard of actual malice as far as the defamation claim is concerned.

“She would have to establish that he knows those things that he put in the complaint are not true, or he doesn’t care if they’re true or not, he just wants to make her look bad,” says Mitra Ahouraian, an entertainment lawyer and the founder of Ahouraian Law in Beverly Hills, California. “She has to show that malicious intent, which is difficult to do, but she has a greater chance of winning if she can show that the statements she made were true.”

This is why so much of the testimony has revolved around what Depp and Heard allege occurred during their marriage, she adds. But Ahouraian also points out that actual malice has to do with someone’s intentions, and intent is generally hard to prove in a court of law. It’s possible that neither Heard nor Depp will be able to meet that burden in the end. Jurors do not have to pick a side. They could not rule in either person’s favor.

All three attorneys The Independent spoke with had positive impressions of Depp as a witness. “I think he did really great as a witness,” said Ahouraian. “... He came off as likable, as someone who was himself.” Wade found that Depp “acquitted himself much better than I might have expected, given the UK libel trial backdrop to this.”

Jesse Weber, an attorney and host on the Law & Crime network who has covered the case from the Fairfax County Courthouse, found that Depp “came off very strong”. “He took his time,” Weber says. “He was contemplating his answers and he didn’t speak like one of his characters. He spoke like a real human being. For me, and I think for a lot of people, it came off as very relatable.”

It’s earlier in Heard’s testimony when we speak, but at the beginning of day two of her testimony, Wade finds that she has “also come across very impressively”.

“She’s more in the hot seat than [Depp] is,” Weber says. “She’s the main defendant in this case. And she’s facing a very hostile online social community. After three weeks of testimony against her, it’s now her chance to reframe the narrative”

One issue Weber sees for Heard is that a lot of the alleged abuse happened “behind closed doors”, “so it’s all going to come down to whether or not the jury believes her.”

The trial has been overwhelmingly public. Proceedings have been televised, providing a considerable amount of access to developments inside of the courthouse. “Everybody in America is now watching this case,” Weber says, “and they’re learning details of this relationship that they never knew before.” To Ahouraian, this amount of publicity has been a key factor on Depp’s side. “[His] objective in bringing this lawsuit more than anything is not just to recover money, but to clear his name,” she says. “... He wants people to hear his side, and he really is using the courts as a platform to be heard in a way that he hasn’t been heard before.”

But publicity is a double-edged sword: almost everything said inside a courthouse is public, including evidence that serves one party over the other. In other words: embarrassing or damning elements may be revealed along with those one side willingly puts forward.

Winning in the court of public opinion, however, does not necessarily mean winning this specific case. “Could [Depp] win in the court of public opinion? Sure,” Weber says. “But to win a legal case, people sometimes conflate the issues or they get confused about the issues.” If Heard can prove “just one instance of abuse, whether it’s emotional, physical, mental, psychological,” Weber adds, “[Depp] loses this case.”

The jury, notably, is forbidden from reading up on the case or consuming any of the coverage around it. They will have to rule on Depp’s suit and Heard’s countersuit based solely on the evidence presented inside the courtroom. Proceedings are expected to resume on Monday (16 May), with closing arguments scheduled on 27 May.