As readers know, I am a lawyer. One of the Courts I am admitted to practice in is the Federal Court for the Eastern District of Virginia. This is where a great deal of piracy and terrorism cases are normally tried, and the courthouse has significant security for that reason.

However, the most famous “pirate” trial going on in a courtroom is at the Fairfax Circuit Court. That is where Johnny Depp – a.k.a. Captain Jack Sparrow – has a defamation trial against his ex-wife, Amber Heard. I have been in that cortroom and before that judge, and I know a thing or two about defamation in Virginia. And for this reason, I would like to talk about what Johnny Depp must prove in his case.

When it comes to the trial itself, you need to know about the complaint itself. You can read the Complaint for yourself here:

This is not a post that is going to break-down the evidence or talk about any particular side. Instead, this is a basic understanding of what is going on at the trial in Fairfax, from the view of a lawyer who practices often in Fairfax.

My View of the Trial

One day I was in court, and the court staff was all abuzz about the “celebrity trial.” I had general knowledge that there was going to be the Johnny Depp trial in Fairfax, but I didn’t know when it was starting.

After finishing my hearing, I walked out of my courtroom, going out the door, and something caught my eye. Before I give this next line, I need to explain that most attorneys (male and female) who appear in Fairfax Circuit Court are overworked, underpaid, and just as scruffy as a warehouse workers, except that we are required to wear suits. But what caught my eye is that I saw the back of a female attorney’s head, and for some reason, even this caught my eye. The thought that went through my mind was, “Whoa. She really did her hair.” I have since come to learn (based on who she was standing next to) that the person was Camille Vasquez, who is part of Depp’s legal team. So, that is my proximity to this case.

Today, as Amber Heard is being cross examined, I had to file something in a case. So, of course, I walked by Courtroom 5J, just to see what was going on. While it is normally possible to just walk in and WATCH a trial, because all trials are public (which I highly recommend if you are thinking about the field of law), this one is a bit different. You need to get a “spectator pass” that the Court passes out each day. I did not have one, so there was no way I was getting in.

I asked one of the four officers patrolling the door if I could take a selfie, and he said “No. No photography in the courthouse allowed.” I thanked him and said I didn’t want to break any rules. One of the other officers said, “That’s funny. They normally just take the picture.” I went about my business. That’s what’s going on at Fairfax Circuit Court, at least from my vantage point.

Why is the Depp Trial in Virginia

But here’s the first question: Why is this trial between Johnny Depp and Amber Heard in Virginia? Well, there are two answers to this. The legal answer is this, which was explained in the Complaint:

11. Venue is proper in this circuit under Va. Code § 8.01-262 because the causes of action asserted herein arose in this Circuit.

But that’s rather strange, because…. …IT DIDN’T. You see, everybody knows the defamation trial is happening because of something published in the Washington Post. But the Washington Post is a Washington, DC, newspaper, with its principal place of business on K Street in Washington, DC. It is not a Virginia newspaper. So, shouldn’t this trial be in Washington, DC?

Well, not so simple. You see, while “the Washington Post” is a Washington Newspaper, everyone knows that Jeff Bezos actually owns the Washington Post, and he does it through a little-known company called The Slate Group LLC. This LLC that owns the Washington Post is located in Virginia. Additionally, while the Washington Post is located in Virginia, the actual stuff that goes into producing the Washington Post happens in Fairfax County specifically. As the complaint says in paragraph 10:

Moreover, exercising jurisdiction would not offend traditional notions of fair play and substantial justice because Defendant could have – indeed should have – reasonably foreseen being haled into a Virginia court to account for her false and defamatory op-ed which was published: in a newspaper that is printed in Springfield, Virginia; in an online edition of the newspaper that is created on a digital platform in Virginia and routed through servers in Virginia; in a newspaper that has wide circulation in Virginia and even publishes a Virginia local edition in which the false and defamatory op-ed appeared; and in a newspaper that maintains two physical offices in Virginia. Further, Defendant published the false and defamatory op-ed to promote her new movie which was in Virginia theaters for viewing by Virginia audiences.

That is the basis that Virginia can exercise “jurisdiction” over this case, but also why Fairfax is the proper “venue” for this case, and not Arlington, or Alexandria, or Prince William, or anywhere else, because “the causes of action asserted herein arose in this Circuit.”

And technically, that’s true, but it’s not the only place this case could have been brought. It could have been brought in federal court. It could have been brought in California. It could have been brought in Washington DC. Why didn’t they sue anywhere else?

The answer is clear to a Virginia lawyer. Unlike federal court or many other states with favorable “motion for summary judgment” rules:

VIRGINIA CIVIL CASES GET JURY TRIALS EASILY COMPARED TO OTHER JURISDICTIONS

And when you’re the plaintiff in a defamation case, you WANT to get to a jury. Judges are stingy on damages. But that just explains why you get in Virginia itself. While Arlington Circuit Court would have been a perfectly good location for this trial, that court is in a fairly urban area, which is probably not very well-suited to “security” for Johnny Depp. On the other hand, Fairfax Circuit Court has wide lawns and plenty of space in a fairly sub-urban area. So, why is this trial in Fairfax?

Because they wanted it to be in Fairfax.

So, notice this about this case: a detail as small as the physical location of the trial was DELIBERATELY CHOSEN AND RIDICULOUSLY WELL PLANNED by Johnny Depp’s legal team.

Why I Like This Trial

Everyone, it seems, including me, is watching a great deal of the presentation of evidence online. But for me as a lawyer, this is almost a master-class in practicing in this Courtroom. Trials are actually pretty free-flowing affairs with judges coming down hard on the big rules, but bending a little on certain evidence questions when they in their judgment think that it doesn’t really matter.

However, in this case, EVERY hearsay objection is a big deal, EVERY redaction of a phone number is a big deal, and EVERY question being asked hits the YouTube circuit. So for that reason, this case has hours of wonderful practice examples of hearsay in testimony in a courtroom I have practiced in before a judge I have seen. So, I’m loving this as a professional learning exercise.

But something else should be noted, too. While many people are saying how “wonderful” Johnny Depp’s lawyers are doing (and yes, they’re doing a good job), I am noticing something else. I can tell that Depp’s team has THOUSANDS of exhibits both being introduced and ready to be introduced in rebuttal. That takes HOURS of prep which is NOT FREE. I can see that his team has the previous days’ transcripts in their hands. Based on the normal schedule of getting a transcript, I know these are rushed, and that is NOT FREE. I can tell that during cross-examination, video-depositions are time-stamped to correspond to the exact answers of particular questions. That involves a ridiculous amount of preparation and it is NOT FREE.

The cross-examination of Amber Heard that is going on is excellently done, but I notice something other than “hard hitting” questions or things presented in the evidence. What I am noticing is that the female lawyer’s questions are not “shoot from the hip” type of cross-examination that most lawyers have to do out of pure skill, habit, and personal memory. While there is skill involved, what I am watching is HIGHLY planned and prepared. And that type of preparation is EXPENSIVE, more expensive than most all clients can afford.

So, while a lot of my litigation and most other Fairfax litigation is metaphorically like my reliable Honda Accord that gets me from point A to point B, or maybe like a metaphorical F-350 with a trailer that has to haul a lot of stuff to the jury, this trial is like a metaphorical Tesla Roadster on top of a Space-X Falcon Heavy, getting shot into space.

Therefore, watching this trial is like watching the best version of what a legal team can do with unlimited money. It’s a master-class, and I love it.

The Law on Defamation in Virginia

But at the end of the day, the same law applies to everyone. So let’s talk about the law. What is really going on in this trial?

Basics of Defamation in Virginia

As one of my reference books on defamation states:

Unlike some states, Virginia recognizes no distinction between actions for libel (written defamation) and for slander (oral defamation). This approach simplifies Virginia law but unfortunately renders irrelevant on of the few defamation rules that most lawyers recall from law school. Inexplicably, some courts continue to use the old terms.

Spahn, Thomas E., The Law of Defamation in Virginia, 2018 Edition, Virginia CLE Publications, 1.4

But now let’s talk about how it applies to Johnny Depp specifically, who is a “public figure” for the purposes of defamation.

Elements to Prove Defamation

When the trial is over, the jury will receive instructions and decide the issues based on those instructions. In this matter, Johnny Depp has claimed that the statements made about him are “defamatory per se,” which means that they are ALWAYS defamatory in all circumstances. If you or I or most anyone else were accused of domestic abuse, that would damage our reputations. That’s what per se defamation is.

In contrast, if someone were to say “in reality, he is terrible to work with on set,” that would be something that is defamatory but NOT “per se defamatory” against Johnny Depp. If you or I or most anyone else were accused of being “terrible to work with on set,” this wouldn’t be defamatory at all.

So, we’re goin to cover what the Virginia Model Jury Instructions say is appropriate for a public figure on “per se” defamatory words. While the lawyers are probably going to fine-tune these words for this case, the basic template is here:

[For use in a case involving a public figure plaintiff, where the court has determined the statement is
defamatory per se.]
Your verdict must be based on the facts as you find them and on the law contained in all
of these instructions.
The issues in this case are:
(1) Did the defendant make the following statement: (words of statement)?

(2) Is the statement about the plaintiff?

(3) Was the statement [heard; seen] by someone other than the plaintiff?

(4) Is the statement false?

(5) Did the defendant make the statement knowing it to be false or did the defendant make it
so recklessly as to amount to a willful disregard for the truth, that is, with a high degree of
awareness that the statement was probably false?

(6) If the plaintiff is entitled to recover, what is the amount of plaintiff’s damages?

Despite all of the surrounding hullabaloo, THAT is the only thing that is at issue in this trial. There are four independent defamatory statements that need to be plugged in to this formula.

Keep that in mind as we talk about this particular trial.

Johnny Depp’s Claims in the Previous UK Trial

In the previous UK trial, Johnny Depp was suing the Sun, because the Sun called him a “wife beater.” But Johnny Depp lost. But here’s the question, why did Johnny Depp try to sue there first? Well, surprisingly, the same reference book gives a likely answer:

Some Americans wonder why American celebrities seem to file defamation actions in the United Kingdom rather than in the United States. The answer lies in the different fault requirements in the two legal systems.

Most states formerly recognized defamation as a strict liability tort. In other words, a plaintiff only needed to establish falsity to recover at least nominal damages. Every state now requires plaintiffs to establish at least some degree of fault. Public figure plaintiffs, such as celebrities, must prove a much higher degree of fault.

In the United Kingdom, the law has retained many of the strict liability aspects that no longer control United States law. Public figures therefore travel to the United Kingdom to gain its far more advantageous legal standard. One United Kingdom decision seems to be moving its law in the same direction that the United States law has moved, but there is still a way to go.

Spahn, Thomas E., The Law of Defamation in Virginia, 2018 Edition, Virginia CLE Publications, 1.6

As such, it may seem that because the United Kingdom has advantages to “public figure plaintiffs,” it may seem that Johnny Depp lost at his best chance. And while I won’t get into the details of the difference between UK defamation law and American Defamation law, that is simply not true. The reason is quite simple.

The Sun IS A NEWSPAPER in the United Kingdom. The defamatory words were “wife beater” as applied to Johnny Depp. Johnny Depp did not sue Amber Heard in the United Kingdom, and the defamatory statements were completely different there than they are in the Fairfax lawsuit. Amber Heard did not publish her op-ed in the United Kingdom, either.

As such, these two trials are about COMPLETELY DIFFERENT in all legal senses.

You see, Johnny Depp was suing a NEWSPAPER, and a newspaper is not REQUIRED to get everything right as a general rule when it comes to defamation trials. Instead, newspapers are generally safe, so long as they don’t do one of two things:

1. Purposefully get facts wrong that damages someone’s reputation [called “actual malice”], or
2. Not exercise due diligence in investigating whether the things they report are false [called “knew or should have known it to be false”].

So, when the judge in the UK was deciding if the various allegations were “substantially true,” what the UK judge was doing was seeing whether the newspaper was liable. The judge was also not determining anything like “75% of the abuse allegations are true, adding up to substantial truth” (more on that below). Instead, the point was to see if the Sun had good reason to believe that Johnny Depp was a “wife beater.”

And based on what Amber Heard had publicly stated, the Sun (without commenting on the general standards of that newspaper or the truthfulness of the allegations) had “good reason” to believe that Johnny Depp was a “wife beater.” Why? Because his ex-wife was throwing SERIOUS HINTS that he was a “wife beater” when they published the story. Amber Heard testified in that trial because she was A WITNESS, not because she was a defendant.

The judgement in the UK wasn’t making claims about whether Johnny’s alleged abuse of Amber Heard ACTUALLY did or did not happen. Instead, the question before the judge was whether the Sun had good reason to think so. And no matter what your opinion of Amber Heard or Johnny Depp is, Amber Heard is THE PERFECT person to serve as a witness to the alleged abuse by Johnny Depp.

Unless, of course…. ….she’s totally lying.

Which brings us to the current trial.

Johnny Depp’s Claims Against Amber Heard

While Amber Heard was a witness in the United Kingdom trial against the Sun, Johnny Depp was also suing Amber Heard in Fairfax. However, unlike the last trial, where the Sun can (with due diligence) rely on Amber Heard’s statements (even if they end up being false), Amber Heard can only rely on herself.

So let’s get to the alleged defamatory words themselves. The complaint defines the following “defamatory words” that are the subject of the lawsuit:

1. Amber Heard: I spoke up against sexual violence – and faced our culture’s wrath. That has to change.”
2. Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.
3. I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.
4. I write this as a woman who had to change my phone number weekly because I was getting death threats. For months, I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars. Tabloid outlets that posted pictures of me spun them in a negative light. I felt as though I was on trial in the court of public opinion – and my life and livelihood depended on myriad judgment far beyond my control.

These words need to be understood by the jury “in context,” so the entire Op-Ed is relevant. As such, the alleged “defamatory op-ed” in the Washington Post contains the following text, with the defamatory words in bold:

[Original print title on the Washington Post story]: A TRANSFORMATIVE MOMENT FOR WOMEN, by Amber Heard

[Digital title on the digital Washington Post story that was tweeted out by Amber Heard]: I SPOKE UP AGAINST SEXUAL VIOLENCE – AND FACED OUR CULTURE’S WRATH. THAT HAS TO CHANGE.

I was exposed to abuse at a very young age. I knew certain things early on, without eve having to be told, I knew that men have the power – physically, socially and financially – and that a lot of institutions support that arrangement. I knew this long before I had the words to articulate it, and I bet you learned it young, too.

Like many women, I had been harassed and sexually assaulted by the time I was of college age. But I kept quiet – I did not expect filing complaints to bring justice. And I didn’t see myself as a victim.

Then two years ago [footnote in complaint: the precise time frame of her allegations against and divorce from Mr. Depp], I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.

Friends and advisers told me I would never again work as an actress – that I would be blacklisted. A movie I was attached to recast my role. I had just shot a two-year campaign as the face of a global fashion brand, and the company dropped me. Questions arose as to whether I would be able to keep my role of Mera in the movies “Justice League” and “Aquaman.”

I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.

Imagine a powerful man as a ship, like the Titanic. That ship is a huge enterprise. When it strikes an iceberg, there are a lot of people on board desperate to patch up holes – not because they believe in or even care about the ship, but because their own fates depend on the enterprise.

In recent years, the #MeToo movement has taught us about how power like this works, not just in Hollywood but in all kinds of institution – workplaces, places of worship or simply in particular communities. In every walk of life, women are confronting these men who are buoyed by social, economic and cultural power. And these institutions are beginning to change.

We are in a transformative political moment. The president of our country has been accused by more than a dozen women of sexual misconduct, including assault and harassment. Outrage over his statements and behavior has energized a female-led opposition. #MeToo started a conversation about just how profoundly sexual violence affects women in every area of our lives. And last month, more women were elected to Congress than ever in our history, with a mandate to take women’s issues seriously. Women’s rage and determination to end sexual violence are turning into a political force.

We have an opening now to bolster and build institutions protective of women. For starters, Congress can reauthorize and strengthen the Violence Against Women Act. First passed in 1994, the act is one of the most effective pieces of legislation enacted to fight domestic violence and sexual assault. It creates support systems for people who report abuse, and provides funding for rape crisis centers, legal assistance programs and other critical services. It improves responses by law enforcement, and it prohibits discrimination against LGBTQ survivors. Funding for the act expired in September and has only been temporarily extended.

We should continue to fight sexual assault on college campuses, while simultaneously insisting on fair processes for adjudicating complains. Last month, Education Secretary Betsy DeVos proposed changes to Title IX rules governing the treatment of sexual harassment and assault in schools. While some changes would make the process for handling complaints more fair, others would weaken protections for sexual assault survivors. For example, the new rules would require schools to investigate only the most extreme complaints, and then only when they are made to designated officials. Women on campuses already have trouble coming forward about sexual violence – why would we allow institution to scale back supports?

I write this as a woman who had to change my phone number weekly because I was getting death threats. For months, I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars. Tabloid outlets that posted pictures of me spun them in a negative light. I felt as though I was on trial in the court of public opinion – and my life and livelihood depended on myriad judgments far beyond my control.

I want to ensure that women who come forward to talk about violence receive more support. We are electing representatives who know how deeply we care about these issues. We can work together to demand changes to laws and rules and social norms – and to right the imbalances that have shaped our lives. [The writer is an actress and ambassador on women’s rights at the American Civil Liberties Union.]

That text is attached as an exhibit to the complaint, which is where I got it from, as the Washington Post story is paywalled, and I’m too poor to subscribe.

What Johnny Depp Must Prove and How His Defense Matches The Elements

A good lawyer at the start of every case is going to have those elements, put them out on a spreadsheet. Any old defamation case would look like this:

But that’s a spreadsheet for something simple like “I ate at McBurger’s Restaurant on 10th street and there was a roach in my burger! I’m never eating there again!”

In a case like the Johnny Depp trial, this spreadsheet is RIDICULOUS. It’s probably pages upon pages upon pages. But you can see how they are planning it out to prove every element in their case. Now, I’m not going to break down what the “spreadsheet” would look like, but I do make reference to it, because this can help you see why certain witnesses are coming forward, and why certain things are being said.

The following are a few examples covering each of the elements of the defamation claims.

Amber Heard Made the Statements in the Case

There was an extended argument about who actually wrote the title on the online version of the article, which contained a defamatory statement: “I SPOKE UP AGAINST SEXUAL VIOLENCE – AND FACED OUR CULTURE’S WRATH. THAT HAS TO CHANGE.“

What is clear is that Amber Heard DID NOT WRITE THAT. This is important, because in the Op-Ed, Amber Heard never directly claims that SHE was the victim of sexual violence FROM Johnny Depp. So Johnny Depp needs to show that these casual mentions of “sexual violence” are about him. That headline is the best way to do it. Because Amber Heard did not choose either of the titles of the op-ed that she did write, the Defense claims that the Plaintiff did not establish that Amber Heard “made the statement.” The response to this was the claim that Amber Heard adopted the statement as her own when she tweeted out the online article:

The matter was taken “under advisement,” which means that she will decide it later. But it is worth noting that if nobody says that Amber Heard adopted the statement as her own (in other words, if Amber Heard doesn’t testify to it in Direct or Cross-Examination) it is possible that the first statement WILL NOT be found to be defamatory for the simple reason that Amber Heard did not ACTUALLY WRITE it. That’s why this element is an important one in the case.

The Statements Were About Johnny Depp

If you read the Op-Ed, you will notice that Johnny Depp is never mentioned. Why? Well, obviously, it is because Amber Heard has a lawyer with two brain cells that aren’t fighting. You DON’T DO THAT if you don’t want to get sued.

But this does bring up a jury issue. Are EACH of those four statements ACTUALLY about Johnny Depp? That’s a good question, because look at certain statements that are NOT about Johnny Depp but which WERE in that Op-Ed:

• I was exposed to abuse at a very young age.
• Like many women, I had been harassed and sexually assaulted by the time I was of college age. But I kept quiet – I did not expect filing complaints to bring justice. And I didn’t see myself as a victim.
• Imagine a powerful man as a ship, like the Titanic. That ship is a huge enterprise. When it strikes an iceberg, there are a lot of people on board desperate to patch up holes – not because they believe in or even care about the ship, but because their own fates depend on the enterprise.

It is arguable that these could be about SOMEONE, and that “Titanic” line seems to be obviously about Johnny Depp, including the “friends and employees” who might not “care about the ship.”

So, the choice of statements is rather strategic. The Depp Team is focusing in on the statements they believe can be shown to be about Johnny Depp.

What was rather strange in the Amber Heard testimony is that this could have gone a different way. She could have said something like “I just spoke up generally about my abuse in college, not about Johnny.” She could have said, “When I spoke up generally about my abuse in college, I was chased around and demonized because they thought I was talking about Johnny.” That would have been RIDICULOUSLY hard for Johnny Depp to overcome (assuming they didn’t have other info). That would have been one way to say that the statements were not about Johnny Depp.

But amazingly, Amber Heard didn’t do that. In her testimony, she went all in. She is claiming that she has been beaten by Johnny Depp, sexually assaulted with a wine bottle by Johnny Depp, kept back in her career by Johnny Depp, as well as a host of other things — all done by Johnny Depp.

So, this is is more than a case. It’s a knife fight, and that’s why this trial is so CRAZY INTERESTING to watch.

And with that, we move on to the next element.

The Statement Was Seen by Someone Other Than the Plaintiff

This is the easiest one to prove, so it doesn’t really matter for this case. Amber Heard literally put it in the Washington Post for the world to see. However, this can get difficult if a statement about someone in a large corporation like “Disney” is only seen by the thousands of people who work “at Disney.” That’s because the law does not treat each one of those individual employees as another person. Instead, “Disney” is a SINGLE person. And so if an supervisor (who is acting as an employee of Disney) says something to his boss (who is acting as an employee of Disney), that’s NORMALLY not defamation, because this is the legal equivalent to a conversation inside someone’s head. You have to jump through extra hoops (like making the statement with “actual malice”) to make it defamation.

But that’s not relevant here, because LITERALLY EVERYONE knows about this trial.

The Statement was False

This is where it gets darn hard for Johnny Depp. He has to prove that despite being EVEN LESS SOBER than his on-screen persona of Jack Sparrow, Amber Heard was NOT a victim of domestic abuse. That’s a tall order.

As the Complaint says:

4. Ms. Heard’s implication in her op-ed that Mr. Depp is a domestic abuser is not only demonstrably false, it is defamatory per se. Ms. Heard falsely implied that Mr. Depp was guilty of domestic violence, which is a crime involving moral turpitude. Moreover, Ms. Heard’s false implication prejudiced Mr. Depp in his career as a film actor and incalculably (and immediately) damaged his reputation as a public figure.

So, if you read that carefully, you note that Depp is claiming he NEVER abused her, not that he didn’t abuse her as bad as she was implying or something. For this reason, even if the small bruise that Amber Heard showed in her argument is deemed to be from “abuse,” Depp’s entire case falls apart:

Luckily for Johnny Depp, you can’t see any outlines of “rings” on that bruise.

Additionally, if the following picture is of ACTUAL bruises from Johnny Depp (and not smudged makeup or normal redness in the face from crying), then his case completely falls:

Luckily for Johnny Depp, there doesn’t seem to be any swelling. Unfortunately for Amber Heard’s team, her skin and face seems to be quite “tough” even when she was “repeatedly punched in the face.”

But this also shows the strategy of Johnny Depp’s team. Because Amber Heard is making very specific allegations about Johnny Depp and extremely disturbing statements about abuse, the strategy is to paint her as A COMPLETE AND TOTAL PSYCHOPATH. Therefore, she can’t be believed about anything.

Which brings us to the next element, which is closely related to this element.

The Defendant Knew the Statement Was False or had a Reckless Disregard for the Truth of the Statement

The case here all depends on Amber Heard. She doesn’t have an “excuse” to believe her own statements. It either happened or it didn’t. But actually, that’s not quite true, because there is even more leeway given to Amber Heard. This relates to the “substantial truth” of the United Kingdom lawsuit.

The point is that Amber Heard does not have to tell the “absolute truth.” Instead, she must only tell the “substantial” truth. Here’s what that means:

6.3 “Substantial Truth”

Under both the old and new approach to truth and falsity, courts consider a statement true if it is “substantially true.” As the Virginia Supreme Court has explained, “slight inaccuracies of expression are immaterial provided the defamatory charge is true in substance, and it is sufficient to show that the imputation is substantially true.”

Most courts take a practical approach to this “substantial truth” standard. They hold that “a statement is deemed substantially true for purposes of defamation actions where ‘the substance, the gist, the sting, of the libelous charge be justified.'” For instance, a statement that the plaintiff robbed a bank on Main Street, when he or she actually robbed a bank on Elm Street, would be technically false but “substantially true.” The false statement carries the same “gist” or “sting” as the true statement. Federal courts have used the phrase “material falsity.”

Spahn, Thomas E., The Law of Defamation in Virginia, 2018 Edition, Virginia CLE Publications, 6.3

You can see this in action when Amber Heard keeps bringing up Johnny Depp’s prolific and varied drug use. You can also see it when banging cabinets and yelling back at Amber Heard in arguments are put into evidence. This is not GREAT proof that Johnny Depp both physically and sexually abused Amber Heard in the way she describes, but the point is to make it land in the same ballpark of the statements in the Op-Ed. If Amber heard can establish that the statements she made were “substantially true,” or as a layman might say, “mostly true,” then she wins.

And for this reason, I remind you of the trial strategy of Johnny Depp, which is to paint Amber Heard as an absolute psychopath. As such, she can’t be believed ON ANYTHING. Normally, this never works, but this trial is not normal.

This is why the source of that poop on the bed is important: not because it really has an effect on the outcome of the defamation case, but because it goes to who is believable and who is an absolute psychopath who can’t be believed on anything. And despite the online chatter, this is a good 50-50 question. You and I weren’t there, and we didn’t observe the poop. And if you have an opinion on the poop, you shouldn’t be so naïve to think that your particular opinion on the question of who pooped the bed if free from any influence of a publicity strategy being pushed on your YouTube or Facebook or Twitter feeds to suggest who pooped on the bed.

The jurors, on the other hand, are only supposed to be looking (if they follow the instructions) at the evidence in the Court. And it’s not about poop. It’s about domestic abuse. All of that stuff about poop on the bed is just going to “credibility,” which I have described as “painting Amber Heard as an absolute psychopath in Court.”

It is no accident that the cross-examination is being done by a female who is equally attractive and young as Amber Heard. That’s not a battle of evidence. This is psychological street brawl about who should be believed.

Some of Amber Heard’s best points in evidence about who can be believed surrounds the fact that Johnny Depp OBVIOUSLY had a drug problem. She also has the point that many of the witnesses are employees of Johnny Depp, which should not be controlling, but is at least relevant.

On the other hand, Depp’s legal team has the advantage of the absence of evidence of some STUNNING claims, or (in the alternative) Amber Heard’s seemingly Wolverine-like ability to heal after getting broken noses and busted lips and ripped out hair.

As far as positive evidence goes, the best exhibits of Amber Heard being untrustworthy and a psychopath, there are the audio recordings of Amber Heard screaming to Johnny Depp about the types of being hit that count as being “punched.” The best in-person exhibits demonstrating that Amber Heard couldn’t be trusted was the gargantuan knife that Amber Heard gave Johnny Depp (apparently after she was already the victim of physical abuse) that was shown to the jury. One of the best witnesses on the point about Amber Heard being– how do we put this mildly– “less than an ideal spouse” was the accountant for Johnny Depp, who testified about Amber Heard’s spending in the 15 month marriage:

This “don’t believe anything the defendant says” tactic is NORMALLY a huge loser in trial. But this is not a normal trial. That’s why it is such a spectacle to watch.

Unfortunately, it is also real life, which as human beings, we should stop and be sad about. Even if Amber Heard did and acted exactly as Johnny Depp complains she is acting, she needs help. And after all of this crap, who would give it to her? On the other side, do you think Johnny Depp LIKES having all this private stuff shown about him? I doubt it.

So yes, this is a sad train wreck. But like most train wrecks, I can’t pull my eyes away.

The Plaintiff Was Damaged in the Amount of $50,000,000 (or more)

In this case, Johnny Depp is asking for $50,000,000 in compensatory damages. Compensatory damages are things that you are “compensated” for, like lost profits, medical bills, repair costs, etc. In this matter, it is the monetary consequences of the damage to his reputation. Outside of that, one has to prove that the damage is related to his trade or business, which for him is pretty much the same thing.

This was the reason that Johnny Depp had to put on evidence about the search results of Google on his name. He had to put evidence on about his reputation in Hollywood. He had to show that as a result of these statements, he lost job opportunities because of the statements.

That’s a super technical thing, and I’m not interested in actual amounts. I don’t do math. The only reason it becomes interesting is like the case that Donald Trump brought against the NFL in the 1980s for being a monopoly on Football in America, restraining the success of the USFL, a professional football league that technically still exists. The jury in the civil trial found the NFL completely liable for being a monopoly, found the liable for hurting the USFL, and then provided the following determination of damages:

$1.00

Thanks to the law awarding treble damages, plus interest, the USFL actually got a check for $3.76. That’s how you can “win” without really winning. That is possible here, too.

Along these lines, to push back on the “damages” question, Amber Heard’s legal team tried (and mostly failed in my opinion) to show that Johnny Depp’s career was already on the way down. I’ve seen a lot of gloating at the “hit pieces” against Johnny Depp, but the point is to get it in the mind of the jury. The point there isn’t to say that Amber Heard is inncent of anything. The point is to say, “Was Johnny really damages $50,000,000?”

But one potential danger for Johnny Depp is that his career was on the way down because of drugs and getting old, rather than domestic abuse. While those suggestions have been made, no affirmative evidence has been put forward on that subject. But yes, it is a good question about exactly how much Johnny Depp lost, compared to the normal amount he otherwise wood have received. This isn’t something as simple as a wage or salaried employee.

Attorney’s Fees

In addition, Johnny Depp is seeking attorney’s fees. Unfortunately, that’s a big “nope” in the law. Lawyers can and almost always do ask for them, but you never get your attorney’s fees as a part of the damages, unless a specific statute says you get them or a contract between the parties says you get them. Perhaps there is some line in a divorce agreement that speaks to this, but if there is not, this is a dead end.

Punitive Damages

But Johnny Depp is also asking for punitive damages. Punitive damages are intended to “punish” rather than to “compensate.” The best example for punitive damages is that someone shoots a gun at someone, and the bullet happens to pass through a book the victim was holding, leaving the plaintiff in a civil case without a scratch. His “compensatory” damages would just be the price of the book, but the law has the back-door of “punitive” damages so that defendants can’t get away with it.

And this is where I, as a civil litigation must weep, because punitive damages are capped in Virginia by statute at $350,000:

In any action accruing on or after July 1, 1988, including an action for medical malpractice under Chapter 21.1 (§ 8.01-581.1 et seq.), the total amount awarded for punitive damages against all defendants found to be liable shall be determined by the trier of fact. In no event shall the total amount awarded for punitive damages exceed $350,000. The jury shall not be advised of the limitation prescribed by this section. However, if a jury returns a verdict for punitive damages in excess of the maximum amount specified in this section, the judge shall reduce the award and enter judgment for such damages in the maximum amount provided by this section.

As you can see, I am mostly on the plaintiff’s side. What is going to happen in Court is this: the jury will decide how much in punitive damages it awards to Johnny Depp, without being told about this provision. They could say $100,000,000 if they wanted to. But then, the judge is supposed to cut that down to the maximum allowed by the law.

Looks pretty clear that the maximum is $350,000, right? Ah! Well you aren’t a good lawyer, are you? You see, the statute just says “the maximum amount awarded for punitive damages.” It doesn’t say THE TOTAL AMOUNT IN THE ENTIRE CASE. And at the end, it does not say “reduce the award to $350,000.” Instead, it says “reduce the award and enter judgment for such damages in the maximum amount provided by this section.”

The trick comes in when there are multiple defendants or multiple torts. In one case, 21st Century Systems, Inc. v. Perot Systems Government Systems, Inc., 284 Va. 32 (2012) the Virginia Supreme Court awarded more than $350,000 in punitive damages against one of the defendants, because there was $350,000 in punitive damages against one defendant on one count, but more punitive damages awarded on another count. Other defendants also had punitive damages, because they had different counts which had torts against them.

In the Johnny Depp case, there are technically three claims of defamation:

• Count One – Defamation For Statements In Ms. Heard’s December 18, 2018 Op-Ed in the Online Edition of the Washington Post
• Count Two – Defamation for Statements in Ms. Heard’s December 19, 2018 Op-Ed in the Print Edition of the Washington Post
• Count Three – Defamation for Statements in Ms. Heard’s Op-Ed Which Heard Republished When She Tweeted a LInk to the Op-Ed on December 19, 2018.

Therefore, it is CONCEIVABLE (and I sure hope is possible as an attorney who mostly works with plaintiffs) that Johnny Depp could collect as much as $1,050,000 in punitive damages. However, the majority of the damages here are going to be compensatory damages.

“Other Relief that the Court Sees Fit to Grant”

Johnny Depp is also asking for “other relief” that the Court sees fit to provide. This is a catch-all that doesn’t mean much, but it could be something like an order to either take down the Op-Ed or require the Washington Post to provide a correction or disclaimer on the Op-Ed that Amber Heard wrote to avoid secondary liability. But other than that or something similar (assuming my off-the-top-of-my-head example is accurate), this mean pretty much nothing.

Conclusion

And so that is my explanation of what is going on in the Johnny Depp trial. Johnny Depp actually has some big legal hurdles to overcome, and the outcome IS NOT guaranteed. Even if he wins, who knows how much he will collect.

However, that’s the legal battle. The real issue is that Johnny Depp is trying to get his reputation back. Even if Johnny Depp loses the Court battle, the real issue is not so much the verdict, and this is something I have to tell my client all the time. Sometimes an empty victory is worse than a loss. Sometime a win is not worth the cost to get to the finish line.

For Johnny Depp, he is trying to rebuild his persona as a public figure. It is quite possible that he loses on all claims on a HUGE trial, with BIG stakes, and ALL the resources he could ask for. If that happens, he very well may be the worst plaintiff in Fairfax Circuit Court you have ever heard of…

…but that alone could be a victory.