The Real Loser in Depp v. Heard

Depp and Heard
Photo: Alessandra Benedetti/Getty Images
Eriq Gardner
May 31, 2022

As we get ready to hear the Johnny Depp verdict, what more can really be said about this trial? Over the past six weeks, I’ve been watching it play out in court, and also been consuming the seemingly endless takes about the social dimensions. The end of #MeToo? The rise of TikTok bullying? A YouTube bonanza for legal punditry? Six weeks is a very long time.

As someone who has been following this case from the beginning—as a reporter who traveled to Fairfax, Virginia for pretrial motions (often it was just me and someone from CourthouseNews in the gallery), and as someone who has been talking to insiders with both camps for years—allow me to make two key observations. 

First, the weight of this dispute shouldn’t be underestimated. I know that some in the legal community may look at this as a celebrity “shit show” (to quote one lawyer who texted me). I think that assessment ignores some truly remarkable legal issues that have arisen: The quirks of the Virginia venue, for instance, which I’ll get back to in a moment, or the issue of whether judge Penney Azcarate should have halted this case after a U.K. court ruled in late 2020 that a tabloid’s “wife beater” headline about Depp was substantially true. (Azcarate didn’t let collateral estoppel or res judicata on the international front stop the actor. Nor the Uniform Foreign-Country Money Judgments Recognition Act, which I’ll resist the temptation to discuss further.)

Even the jury’s deliberations will be treading upon extraordinary ground. For instance, Amber Heard didn’t write the headline that The Post used—the one and only reference to “sexual violence.” So should she be liable for that? If the jury finds that to be an untruthful statement, it must decide whether she republished the statement via tweet. Meanwhile, in the counterclaims, Depp is facing liability for what his attorney Adam Waldman told the press. Thus, the jury will tackle the exotic question of agency.

Second—and this might sound contradictory, but is most definitely complementary—this whole trial probably should not be happening. If Depp and Heard wanted to fight over what took place during their marriage, they should have litigated it up the wazoo during the 2016 divorce proceedings, not some libel action years later. Better yet, if there was domestic abuse, maybe there should have been a criminal referral. 

Instead, we have a case about speech, and it’s happening in a state where neither party lives. It’s in Virginia because the state had (and still has, even after a 2020 amendment) a relatively weak anti-SLAPP law—meaning Depp brought the case in Virginia because his attorneys sensed a better chance of succeeding there. And it’s also occurring in Virginia because it’s one of the very few states to adhere to what’s known as the lex loci delicti rule, which is Latin for “place of the wrong where the tort was committed.” 

The fact that Heard’s op-ed was uploaded to The Post’s website and was thus considered “published” in Virginia is what became the green light to fight in the state. Indeed, the original judge (Azcarate is a replacement) declined to adopt the jurisdictional test that has become common elsewhere—looking at whether the parties have a “significant relationship” to the venue. Of course, Depp and Heard don’t, and it’s worth noting that the Virginia Supreme Court hasn’t ever addressed the “place of wrong” in situations when defamatory content is published online. In other words, should Depp win, there’s a decent chance that an appeals court could take Old Dominion into the 21st Century by ripping up the judgment and ruling this case should really have happened elsewhere. (Of course, if Depp wins at trial, he might consider this development to be enough of a public vindication and settle any damages award. So maybe it wouldn’t be appealed.)

That brings me to a point I’ve made before and keep coming back to again and again. I don’t think the outcome will achieve much of anything (besides burnishing the developing stardom of Depp attorney Camille Vasquez, a Brown Rudnick associate). I think rehabilitation of Depp’s reputation is beyond the scope of this proceeding, and, in any event, there’s been enough talk of wayward behavior to make Depp’s legal endeavor highly questionable. I’ll mostly stick to the assessment that Depp amplified an allegation from the divorce that would otherwise have been forgotten (ask Brad Pitt) and nobody is coming out ahead in this case. Plus, he could have written his own op-ed.