The Trial of the Decade
For years, Attorney and nationally syndicated radio talk show host Frederick Penney has been following and discussing Johnny Depp’s legal woes.
However, by far the most intriguing case that he has followed is Johnny Depp’s lawsuit against his former wife Amber Heard. As most are aware, the case was a libel case against Ms. Heard for posting a Dec. 18, 2018, Op-Ed in the Washington Post alleging, in sum, that she was a survivor of domestic abuse at the hands of her former husband Johnny Depp. Though she did not mention Johnny Depp by name, it seemed obvious to Mr. Depp and his team of lawyers that she was clearly referring to him.
On Radio Law Talk, Mr. Penney and his co-hosts Denise Dirks and Todd Kuhnen talked extensively about the trial as it dragged on for weeks, with a prolonged one-week break in the middle of the trial. As both parties in the case battled back and forth, presenting evidence of drug and alcohol abuse while bickering and fighting, the radio hosts wondered who would come out on top at the end.
The trial took place in Virginia since the online edition of the Washington Post Op-Ed was sent out from servers located in Fairfax, Virginia. That was, thus, the location where Mr. Depp sued and Ms. Heard countersued for substantial sums of money. A jury of seven Virginia citizens would hear the case. During the radio show, Mr. Penney and his co-hosts commented that Mr. Depp would have a difficult time proving that Ms. Heard’s statement was entirely false. The reason this was argued is because the law makes it very difficult for a public figure to sue for libel.
In general, for a public figure to win a libel suit, he or she must prove that the person who published the statement, or in this case the Op-Ed, published it with full knowledge that the statements were false and the individual acted with actual malice. If that is proven, then the public figure that is suing must show that he or she was damaged by the malicious, false statement.
It was pointed out in the trial by several experts that abuse can be both verbal and physical. Given that host Frederick Penney believed that all Ms. Heard had to show was that she was abused one time and then Mr. Depp could not prove that the Op-Ed statement was entirely false, he was quite surprised by the verdict.
However, the evidence did become stronger for Mr. Depp as the testimony of the witnesses went on. Nobody can predict a jury and it is very difficult to determine how or what a jury is going to think and what part or parts of the testimony they will rely on. The radio hosts stated all along that in the court of public opinion Mr. Depp was winning and Ms. Heard was not doing so well. Additionally, the hosts were perplexed why Ms. Heard would turn to the jury every time she answered a question. This was quite odd and seemed too contrived. All lawyers have different strategies but this action by Heard seemed odd.
On June 1, 2022, the Jury in the Johnny Depp-Amber Heard case came back almost entirely in favor of Johnny Depp. The jury held that on all counts Ms. Heard defamed Mr. Depp and would be liable for $10 million in compensatory damages and $5 million in punitive damages. Punitive damages are meant to punish a party for their actions. Unfortunately for Johnny Depp, Virginia law only allows $350,000 in punitive damages so Judge Penney Azcarate (interestingly spelled like attorney and radio host Frederick Penney’s last name) lowered the amount to the statutory maximum.
Ms. Heard was awarded $2 million dollars in compensatory damages for damages that the statement Mr. Depp’s attorney made on his behalf. There were no punitive damages against Mr. Depp. The interesting question that few if any have discussed in the case is whether Johnny Depp would be able to force Ms. Heard to pay for his attorney fees since Mr. Depp was the prevailing party. The issue of Ms. Heard’s Travelers homeowners policy covering attorney’s fees and expenses is an article for another day.
Does Amber Heard have to pay Johnny Depp’s attorney fees?
What was the total amount of attorney fees paid in the Depp-Heard trial? $5 million? $10 million? It is unknown but realistically it would have to be in the millions. And what about the costs for the experts to testify? They do not work on a case and testify for free. Since Johnny Depp prevailed in the trial, can he ask the court to award him attorney’s fees? Can Amber Heard ask the court to award her attorney fees since she won a small portion of her countersuit?
Virginia generally follows the “American Rule” that every party must pay their own attorney fees unless it is spelled out statutorily or in a contract. Though the Virginia Supreme Court recently held in Bolton v. McKinney 855 S.E. 2nd 853, that a party may recover its attorney fees without a specific provision in a contract, it does not apply in the Depp-Heard trial.
First, both parties prevailed in the Depp-Heard trial and the courts narrowly tailored the exception to this one case where parties promised not to sue or bring a case against the other party after signing an agreement. The courts held that they did not overrule the general law that the prevailing party cannot obtain attorney fees from the losing party.
There is no final take; this case will proceed in the public eye on social media, television, and in newspapers. Whether there is an appeal by Ms. Heard is yet to be seen. Whether Mr. Depp waives his right to execute a judgement against Ms. Heard if she drops any attempt to appeal will also be something that will be discussed later. The only problem for Ms. Heard is that Mr. Depp will soon start to receive interest on his winnings which could be substantial. Additionally, Mr. Depp needs to think about the possibility of Ms. Heard filing for bankruptcy and trying to get out of paying Mr. Depp anything. Stay tuned.