FAIRFAX, Va. (CN) — Earlier this year, Amber Heard walked away from a six-week long defamation trial inundated by criticism and with a verdict that put her $10 million underwater. But in appellate court filings, lawyers for the actress laid out an aggressive path to upend the case won by her ex-husband Johnny Depp.
The case revolved around a 2018 op-ed published under Heard’s byline that contained assertions Depp contends defamed him. Attorneys for the actress argue that those statements were opinions — free speech protected by law.
If the court finds Heard's statements are opinion, "the claims based on those defamatory statements would be dismissed,” said Elaine Bredehoft, who represented Heard during the trial but not on appeal.
Heard, 36, co-star of the blockbuster movie “Aquaman” and Depp, 59, of the “Pirates of the Caribbean” franchise, married in 2015 and divorced in 2017. Toward the end of the union, Heard took out a restraining order against Depp. Later, in an editorial published by The Washington Post, she described herself as “a public figure representing domestic abuse.”
While Heard's article never mentioned Depp by name, he said she was referring to him. His lawsuit, filed in March 2019, charged that he lost his part in "Pirates of the Caribbean" because of that column. The jury largely sided with Depp, awarding him $10 million in compensatory damages and $5 million in punitive damages, the latter of which was reduced by the judge to the statutory maximum of $350,000. The jury awarded Heard $2 million in compensatory damages and no punitive damages.
In the column, Heard “discussed how women who allege domestic violence are treated by society, and she advocated for changes to relevant laws and social norms,” according to the brief filed by Heard’s legal team. The actress is represented by Benjamin Rottenborn of Woods Rogers, along with Jay Ward Brown and David Axelrod of Ballard Spahr — both of whom were previously involved in defending The New York Times in a defamation case brought by politician Sarah Palin.
“To accept, as the trial court did, Depp’s assertion that a reasonable reader could understand the op-ed to imply that he abused her merely by describing the public reaction to her allegations, would be to create a rule preventing any abused person from addressing the societal implications of speaking out about abuse. If that were the law, then it would be actionable in defamation to say, ‘Four years ago, Christine Blasey Ford became a public figure representing sexual assault.’ That plainly is not the law.”
The briefs also argued that the court erred in allowing the case to be tried in Virginia, instead of California, where the couple lived during their marriage. As a result, Depp went into the trial with an advantage. The actor, “who has considerable resources from his decades as a movie star, was able to call more than fifteen live fact witnesses who voluntarily traveled to Virginia from another jurisdiction or appeared by Webex, many of whom are employed by or otherwise financially linked to Depp.”
The Virginia case should not have gone forward, the briefs argued, as a separate case in the United Kingdom had already concluded that Heard’s charges were true.
Separately, an attorney representing press groups, women’s advocates and groups working with abuse victims, filed a motion asking the Virginia appeals court for permission to file an amicus brief in the case. The groups argue that the verdict is already producing a backlash for women who wish to speak up about abuse.
The concern is that “frivolous and expensive lawsuits by claimants is significant and increasing, especially in Virginia,” wrote Thomas F. Urban II, of Fletcher, Heald and Hildreth, in a brief filed Nov. 23. “People, especially those who have been the victims of abuse, are afraid of speaking out against those who have more power and money. The current case has exacerbated that fear with its precedent. Experts in abuse have already seen a real-world chilling effect on women coming forward with abuse claims.”
In an interview, Urban said he believed the case would have "a significant detrimental effect on defamation law in Virginia if this is allowed to stand."
Depp is also appealing part of the verdict that found that a statement made by one of the actor's attorneys defamed the actress. In a brief filed earlier this month, the actor’s legal team asserts: “The judgment in Ms. Heard’s favor on that lone statement is erroneous.”
The actor, the brief argues, cannot be held accountable for statements made by Adam Waldman, whose name was listed among other attorneys at the bottom of Depp's initial lawsuit in 2019. The lawyer made statements about Heard that were published in The Daily Mail in 2020 — forming the basis for her countersuit. Later that year, Waldman was kicked off the case for allegedly leaking confidential information to the press.
After hearing evidence, the jury decided Heard had been defamed by one quote in which Waldman described an alleged abuse incident as a hoax.
Heard presented no evidence at trial that Depp was personally involved in directing or making the statement, according to the brief. Waldman has a professional license, is the owner and managing member of his own law firm and provides legal services to his clients.
As such, he is an independent contractor. Depp is not responsible for his remarks, the brief concluded.
“As a client’s agent, a lawyer’s conduct may be binding on the client with respect to positions taken in litigation or in a business transaction, but to hold the client liable for an attorney’s intentional tort goes a step too far,” the brief asserts.
Depp’s lawyers, led by Benjamin Chew of Brown Rudnick, also argued that no evidence showed Waldman made the remarks with actual malice — knowledge that the statement was false or made with reckless disregard for the truth.
An employer can be held liable for the action of an employee. But it would be a hot mess if every time a lawyer said something nasty about the other side, there was a lawsuit, remarked Arthur Burger, chair of the professional responsibility practice group for Jackson and Campbell.
“Lawyers have a litigation privilege in connection with the lawsuits that they are handling," he said. "You might think of it as speech in debate. In order to do your job, you’re inherently involved in a highly contentious situation.”
But there is also this: Lawyers like to see themselves on TV. “Some may shoot their mouths off a lot,” he said. “That goes beyond what they are doing as their client's lawyer.”
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