This week, it was announced that Amber Heard and Johnny Depp had settled their very bitter, acrimonious, and sensational lawsuit that garnered so much media coverage earlier this year. As you may recall, Mr. Depp sued Ms. Heard for libel, and Ms. Heard countersued. Both ended up winning their respective lawsuits against each other, but the jury surprised many observers by awarding Mr. Depp a staggering $15 million in damages while Ms. Heard was awarded a comparatively meager $2 million. Even more shocking, the jury’s verdicts implied that they didn’t believe Ms. Heard’s claims that she had been a victim of spousal abuse, even though these allegations had been previously proven in prior court proceedings.
In announcing her settlement, Ms. Heard told the media she had “lost faith in the American legal system.” Hers is an entirely understandable response. I don’t know how much say Ms. Heard had in the decision to settle the case, but I suspect it was very little. Under the terms of the settlement, Ms. Heard’s insurer will pay $1 million to Mr. Depp, who will then donate the money to charity. The settlement is a huge bargain and an excellent deal for the insurance company (I’ll have more to say about that later) but a terrible one for Ms. Heard, who now will not have the opportunity to challenge the jury’s verdicts on appeal. Had she followed through with her appeal, I believe she would have succeeded in overturning the verdicts.
Mr. Depp’s cause of action against Ms. Heard was the tort of defamation. The crux of the lawsuit was that Ms. Heard, in 2018, wrote an op-ed piece urging Congress to renew the Violence Against Women Act. In the editorial, which was published in the Washington Post, Ms. Heard described herself as a victim of abuse. By this time, Ms. Heard and Mr. Depp had been divorced, and Ms. Heard’s allegations of Mr. Depp’s abusive behavior during their marriage had been well substantiated. Heard had introduced sworn affidavits in court during their divorce proceedings in which she alleged verbal and physical abuse by Mr. Depp, and the court had issued a restraining order against Mr. Depp.
In 2019, Mr. Depp initiated the defamation lawsuit against Ms. Heard, seeking damages of $100 million. Subsequently, Mr. Depp sued (in the UK) the British tabloid, The Sun, for calling him a “wife-beater”. The judge ruled against Mr. Depp, and in favor of the tabloid. (The significance of this lawsuit will become apparent very soon.)
Against this factual background, it was surprising to me that Mr. Depp’s case against Mr. Heard was even allowed to go to trial. Even aside from the fact that Ms. Heard’s editorial never mentioned Johnny Depp as her abuser, and even aside from the fact that she never claimed in the editorial to be a victim of physical abuse (In the editorial, which is unfortunately behind a paywall, Ms. Heard generally refers to herself as a victim of “abuse”), there is an even bigger problem with Mr. Depp’s defamation claim: Ms. Heard had already obtained a court decision that she needed and was entitled to protection from Mr. Depp, and this decision was based on the allegations in her sworn affidavit that Mr. Depp had physically abused her. This is significant because it provided a sound legal basis for people to believe that Mr. Depp had, in fact, physically abused Ms. Heard. Based on First Amendment principles, in order for a public figure like Mr. Depp to succeed in a defamation lawsuit, he must to prove that the party allegedly defaming him had knowledge of falsity or a reckless disregard for the truth. The fact that a court had previously issued a restraining order against Mr. Depp based on allegations of physical abuse should have foreclosed the possibility of Mr. Depp succeeding in any defamation lawsuit brought in the United States because anyone defending the lawsuit could claim that they justifiably relied on the court’s issuance of a restraining order as a basis for believing that Mr. Depp had physically abused Ms. Heard.
This is why Mr. Depp sued The Sun in the UK rather than in the United States. UK defamation laws do not require as high a standard of proof as in the United States. But even with UK making it much easier for Depp to prove his defamation case against The Sun, he still lost.
The fact that Mr. Depp’s defamation case was allowed to proceed to trial strongly suggests to me that the judge made an erroneous legal ruling. Had anyone else in the world said that Johnny Depp physically abused Amber Heard, and been sued by Depp, they would have been able to successfully get the case dismissed without a trial on the grounds that they had a right to rely on the court’s issuance of a restraining order in concluding that Mr. Depp had physically abused Ms. Heard. But according to the court that oversaw the Heard/Depp defamation case, Amber Heard did not have the same First Amendment right as everyone else in the world to say that Mr. Depp physically abused her. This is why I believe that the verdict would not have withstood an appeal.
So why didn’t Ms. Heard continue with the appeal? Because Ms. Heard has tendered her defense to her insurance carrier, as do most people who are sued for defamation or other torts that may fall under a personal liability (“Umbrella”) policy. The insurance company may have been facing the possibility of paying out a judgment in excess of $15 million (depending on the particulars of the policy), as well as the costs of prosecuting an appeal. They crunched the numbers and came to the conclusion that it made more economic sense to pay out $1 million than to continue paying lawyers to keep the case going on appeal, and possibly risk paying out $15 million.
This is not an uncommon (or even unreasonable) practice among insurance carriers, even though it may result in an unjust and legally shaky verdict remaining in place. Some of you may recall a very high profile civil case in San Diego County a few years back that followed this same pattern. The plaintiffs in that case, like Mr. Depp in his case, were less interested in a financial payout than they were in using the civil courts as a way of swaying public opinion. They were able to obtain a verdict and a money award against an individual defendant based on very flimsy evidence that would not have likely survived on appeal. So they made sure the appeal never happened by offering to the defendant not to collect on the judgment if the defendant dropped the appeal. The defendant’s insurance carrier jumped at that offer (proving the plaintiffs’ calculations to be correct), and the verdict was left intact.
Mr. Depp brought the lawsuit against Ms. Heard after he was “asked to leave” a Fantastic Beasts movie in which he had been cast. He believed (correctly) that the abuse allegations by Ms. Heard were causing him to lose movie roles. But if his goal was to restore his reputation and make his image less “toxic”, I think he may have badly miscalculated. I don’t believe that his lawsuit had the effect of convincing the public that he was not an abusive husband, except among the hard-core, Kool Aid-drinking Johnny Depp fans who were inclined to believe whatever he said, and to disbelieve anything negative said about him. For the rest of the public, it cemented his reputation as a volatile, abusive man with anger management and impulse control issues, and added a new line to his resumé: Vindictive Asshole.
Ms. Heard wasn’t wrong to be angry at the judicial system. It clearly failed her in this case. But because of the involvement of the insurance company, the judicial system was not given a chance to correct itself, which is what I believe would have happened.
ST