By Dennis E. Boyle

Let me start out by saying that we are white-collar criminal defense lawyers, although we do from time-to-time handle fraud and other complex civil litigation and arbitration matters. Why then would we comment on a defamation case? For one thing, it seems to be the most talked about case currently being tried. When people find out that I am a trial attorney, the first thing they ask about is the Johnny Depp/Amber Heard case. It has captured the imagination of many people as they try to make judgments about Johnny Depp and Amber Heard, and that is significant.

Before delving into the case, in the interest of full disclosure, I should admit that I am not a fan of either Johnny Depp or Amber Heard. I like the first two Pirates of the Caribbean movies but have found his performances elsewhere somewhat lacking. I have not seen Amber Heard in a movie, although I understand she was in the Aquaman movie. Aquaman was one of my favorite superheroes growing up, and I plan on seeing it someday. However, I am a trial lawyer, not a film critic, so I will keep my commentary to areas in which I have greater competence.

What is Defamation, Libel, and Slander?

The definitions of defamation, libel, and slander vary from state to state, but basically, the tort of defamation requires that a plaintiff, the person alleging defamation, prove four elements:

  • First, the defendant, the person being sued, “published” a statement of fact about the plaintiff;
  • Second, the statement the defendant published was false;
  • Third, the defendant was at least negligent in making the statement; and,
  • Fourth, the plaintiff suffered damages as a result of the false statement.

Whenever a plaintiff is a public figure or the statement concerns a matter of public concern, he or she must prove that the defendant acted with “malice” under the First Amendment to the U.S. Constitution. Often referred to as New York Times malice from the U.S. Supreme Court case New York Times v. Sullivan, “malice” requires a public figure to prove that the defendant made the statement either knowing that it was false or with a reckless disregard for whether it was true or not. Johnny Depp is a public figure and must therefore prove that Amber Heard’s statements in an Op-Ed were knowingly false. Amber Heard is counter-suing Johnny Depp for defamation as well as a result of his spokesman’s response to Heard’s allegations. The same rule applies to the counterclaim.

What are the allegedly defamatory statements? According to the Complaint, Heard’s defamatory statement was: “I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” The obvious implication is that she suffered domestic abuse at the hands of Johnny Depp. Depp’s allegedly defamatory statement was that his spokesperson said that Heard’s statements were a “hoax”. Substantively then, the question is whether Depp abused Heard or not and hence the salacious nature of the trial testimony.

Ex-Spouses accuse Each Other of Misconduct All-the-Time, so Why File Suit?

We are not family law attorneys; however, it appears to be common for ex-spouses to say things about each other. Rarely is anyone sued for defamation. The reason for this is likely the cost of suit versus the potential benefit. The Depp/Heard suit likely costs millions of dollars to litigate, and in most cases, the outcome is uncertain. Even if one party defamed another, the jury may award little or no damages.

I once represented a defendant in a defamation case which went to trial. At trial, the jury found that my client had not defamed the plaintiff. The jury did find, however, that another one of the defendants had defamed the plaintiff by calling him a “Liar, a cheat, and a thief.” I do not remember the exact amount of the award, but it was less than a dollar. The recovery of such a paltry sum did not justify the years of discovery and pre-trial litigation, not to mention a two-week trial, that went into the case.

A significant financial recovery may be possible in this case, but it is far from certain. Even if a jury were to award a multi-million-dollar verdict in favor of one party or the other, it is unclear how much money would ultimately exchange hands.

There are times, however, when it may make sense to file a defamation action. Sometimes, the purpose of a defamation case is not to make money, but, rather, to clear one’s name. According to trial testimony, Johnny Depp had not been able to work in the entertainment industry since Heard accused him of domestic abuse. In the age of #Metoo, abuse is not nearly as likely to be overlooked as it would have been just a few years ago. The purpose of the suit could therefore be to regain a reputation.

Defamation actions can also have a deterrent effect. If a defendant is not held accountable legally, he or she might continue making defamatory statements, and those defamatory statements could actually grow more inflammatory. The cost of litigation, the inconvenience and stress of litigation, and the uncertainty of a verdict are likely to deter the person who made the alleged statement from making statements in the future. The use of litigation to deter media coverage of newsworthy events can also be problematic, and many jurisdictions have enacted anti-SLAPP Suit laws. SLAPP stands for “Strategic Lawsuit Against Public Participation”. If a person bringing a SLAPP suit runs the risk of substantial sanctions if he or she does not prevail.

The Strategic Use of Defamation Litigation

There is a time and a place for defamation lawsuits. A reputation is among an individual’s or company’s most valuable assets. At one time, the former-President valued the Trump brand at as much as $4 billion. Of course, that figure could be inflated. The important point to make is that a reputation could have substantial value. When then, should it be protected?

As white-collar criminal and criminal defense lawyers, we have used defamation litigation in a couple of specific situations.

First, whenever an individual has lodged a serious criminal allegation against a client that is clearly not true, it may be necessary to file a defamation to clear the client’s names. If someone files a charge of rape or sexual assault against a client, the results can be devastating even if the government ultimately decides not to file charges or drops a case. Charges of theft, misconduct or illegal behavior can affect promotions, job assignments or even careers, and a defamation action may be the only way to establish that the person making the report was lying.

In one high-profile case, a civil plaintiff’s attorney held a series of press conferences accusing the young college student we represented of being an “abuser” in the media and attempted to have the young man expelled from college. He failed in his efforts to have the student expelled, and the charges filed against the student were ultimately dropped. We sued the lawyer to establish that his statements were false.

In addition, we have filed charges when a former employee of a company has made multiple false reports to various law enforcement agencies. Although none of those reports resulted in any finding of misconduct by any agency, the cost and inconvenience associated with responding to these false reports became substantial and were disruptive to the client’s medical practice. Ultimately, the client decided to file suit as a means of establishing the former employee’s lack of credibility.

None of these cases resulted in any significant financial recovery, but that was not their purpose. In each case, an innocent individual resorted to the courts to vindicate the individuals’ rights, restore their reputation, and/or establish that someone making reports was not credible. In none of these cases was the economic recovery sufficient by itself to justify the litigation.

A Cautionary Note about Defamation Litigation

Before embarking on a defamation case, a plaintiff must understand that these are not cases that are easily settled and that there are substantial risks if the plaintiff is not the innocent victim. Losing a defamation case is worse than not bringing a defamation case. In one case in which I was tangentially involved, a local politician sued the owner of a local paper for accusing him of corruption. The case proceeded to trial, and the jury ultimately ruled in favor of the publication of the paper. Thereafter, the owner of the paper reiterated the statements he had previously made emphasizing that a jury had found in favor of the paper.

So, what about Johnny Depp and Amber Heard? As I write this, the attorneys are giving closing arguments, and the jury will soon begin deliberating on the case. Will the jury establish that Heard lied in her op-ed and by implication that Depp is not an abuser? Or will the jury find in favor of Heard and by implication that Depp was an abuser, and she is a victim?

We will know soon enough.