As most people now know, Johnny Depp won a resounding victory in his defamation trial against Amber Heard. No, that result is not some catastrophe for women or the end of #MeToo. Victims of domestic violence and sexual abuse will continue to stand up for themselves and face their abusers. But Amber Heard was not a victim of domestic violence. Amber Heard was a liar. And that was ultimately her undoing. The case provides some meaningful lessons about defamation law, litigation, and jury trials.
Bench Trials vs. Jury Trials
When you say the word trial, people automatically think about a jury trial. And that is the fairest way to try a case: in front of a jury. But over the past 50 years, corporate America has taken aggressive steps to avoid jury trials. Look at any corporate contract you sign. It usually includes a jury trial waiver (meaning you lose your right to a jury trial and agree to trial by a judge instead). That’s a problem. As a society, we need reform that prohibits jury trial waivers in employment and consumer contexts. If the Johnny Depp / Amber Heard case was decided by a judge, the outcome probably would have been much different. It would have been more of a push than a victory for either side. And nobody would have won $15 million.
Juries Hate Liars
Yes, judges hate liars. But, in my opinion, juries hate liars even more. The reality is that lots of people lie during litigation. And, to a certain extent, judges are used to it. But the people on a jury are not regular players in the legal system. They aren’t jaded from years of experience with litigation. They haven’t been involved in hundreds of cases. Most jurors take their responsibility very seriously. And at the core, that responsibility is to figure out who is telling the truth. Think about it: A jury usually is confronted by two dramatically different versions of events. It’s the classic he said / she said. So at the core, the jury wants to know who is telling the truth. Who is being more honest. Who they should believe.
In the course of figuring that out, a jury is acutely aware of any lies or inconsistencies. Some lawyers and litigants are focused entirely on the big picture and the proverbial smoking gun. But when it comes to establishing credibility, juries pay attention to everything. Juries keep track of little lies and inconsistencies. And eventually, if one side gets caught in enough lies (big or small), the jury turns on that side and says, “Ok, they’re the one whose lying.”
A great example from the Depp / Heard trial: The makeup. As part of her narrative, Heard thought it was a good idea to claim that she used a certain type of makeup to conceal her bruises (from Depp allegedly assaulting her). Heard’s lawyers also thought this was a good detail to include in their story. Shockingly, Heard’s lawyer picked up a container of Milani Cosmetics Concealer, waived it around for the jury to see, and stated – unequivocally – that Heard carried this specific makeup with her for her entire relationship with Depp. The problem: Milani did not release that specific makeup kit until 2017 — the year after Depp and Heard had already split, after the alleged abuse.
Another example: Heard testified that Depp trashed a luxury rental trailer in a fit of rage. The problem: The owner of that trailer showed up and testified that the only damage to the property was a broken candle holder, valued at $62. Some fit of rage.
Another example: Heard testified that she did not tell the media when she filed for divorce and was seeking a restraining order. But Heard had previously admitted that under oath in a prior deposition. Not only that, but a representative of TMZ showed up and testified that Heard’s team had tipped them off.
We could keep going. Bottom line: Lies add up. At a certain point, the jury says, “If this person is lying about all this stuff, then we’re pretty sure they’re lying about the central facts in the case.” That’s an easy leap for a jury to make.
Defamation is a Powerful Claim & a Wildcard
In today’s world of social media, basically everybody has a platform. Anybody can go on Facebook or Twitter and make allegations and accusations. Given that relatively new landscape, people seem to forget that their public statements can have consequences. One of the most devastating allegations that can be levied against anyone (and particularly any man) is that they are guilty of domestic abuse against a woman. Such an allegation is not a matter of opinion. Accusing someone of domestic abuse is a factual allegation. It is a statement of fact (and a very serious statement at that).
A statement of fact that is untrue and tends to harm someone’s reputation = defamation. We litigate defamation cases all the time. But in our practice, we mostly deal with defamation cases that arise in the employment context. It is shockingly common for companies to defame former employees, particularly when those employees leave to join a competitor or start their own competing business. The classic smear campaign involves the old company going to customers, clients, investors, or other relevant third parties and trashing the former employees reputation — all in an effort to prevent competition. Basically: “As I’m sure you know, Joe is no longer with the company. You should be aware that he was fired for stealing from us. He’s currently under investigation. We’re just letting you know. You probably want to avoid doing business with him — we’re sure you don’t want to get dragged into any litigation.”
It may sound crazy, but I have seen that exact movie about 50 times. For whatever reason, people (and companies) often have no reservations about levying very serious factual allegations against other people. That opens the door for a defamation lawsuit. And the more negative the allegation (e.g. something criminal), the easier it is for the plaintiff to recover damages. Some statements are considered so inherently harmful to a person’s reputation that they constitute defamation per se. Why is that important? Because in many jurisdictions, if a plaintiff can establish defamation per se, the plaintiff doesn’t have to prove actual damages. The jury is instructed that damages are presumed and that the jury should award a dollar amount that they consider fair based on all of the facts and circumstances. That’s a real wildcard.
About the Author
Jonathan Pollard is the founder of Pollard PLLC, a law firm based in Fort Lauderdale, Florida. The firm has extensive experience litigating non-compete, trade secret, employment, defamation, and other complex, high-stakes cases. Pollard is routinely quoted in the media on related matters and has appeared in or on The Wall Street Journal, New York Post, NPR, PBS News Hour, Law360, and more. Pollard PLLC represents clients throughout Florida including Miami, Fort Lauderdale, West Palm Beach, Tampa, and Orlando. The firm can be reached at 954-332-2380.