A Lawyer Answers Your Questions About the Johnny Depp and Amber Heard Trial

Over the past two months, the Depp-Heard trial has been everywhere. If you’ve managed to avoid the noise, here’s a quick recap: Johnny Depp is suing his ex-wife Amber Heard for $50m for defamation (which means he feels she has damaged his reputation) following an opinion article in The Washington Post, in which Heard describes herself as a “public figure representing domestic abuse”. 

There’s also not just one trial taking place, there’s two. Heard is simultaneously countersuing Depp for $100m, also for defamation. The jury will hear closing arguments on Friday before beginning their deliberations; Heard and Depp could both lose, or one could win and the other could lose. But they can’t both win. 

The trial itself has been incredibly public. It’s being broadcast live from the Circuit Court of Fairfax County, Virginia, which has led to a huge deluge of TikTok breakdowns, Twitter threads and wild conspiracy theories relating to the case – most of them anti-Heard and pro-Depp.

As a result, there has been an overwhelming amount of misinformation out there. Ahead of the verdict, as each side presents their closing arguments, we asked Dan Novack, a New York-based first amendment lawyer, media law expert and Slandertown podcaster, to answer some of the questions you may have about the hugely polarising case.

VICE: What does it mean to countersue someone? 
Dan Novack: If you’re being sued by someone, and you believe that the basic facts also give you a right to sue, you [might] choose to do that. So here, Depp’s suing Heard. The countersue is that Adam Waldman, who’s not allowed in the courtroom but was part of Depp’s legal team, called her claims “a hoax”. So Heard – who is essentially being called a false accuser – rightly finds this damaging, and is therefore [also] suing. It’s two lawsuits in one.

If Heard wins the lawsuit Depp has filed, she doesn’t owe Depp a thing. But she still has all these legal fees to sort, which is millions of pounds. If she wins her countersue, she might get the legal fees paid for, at least. The countersue is an all-or-nothing move, in that sense.

Can anyone countersue anyone else?
Anyone can countersue anyone if they want to allege that harm is flowing in both directions, or the opposite way to what the first person has claimed. So here, Depp was suing for defamation, and she was suing back because Depp’s legal team called her claims a “hoax”, which is sort of the same – but it’s damaging her whereas Depp says her op-ed damages him.

So they both have a right to sue one another for those things. You can’t countersue just because someone has sued you, as that wouldn’t really hold up. You can also only really countersue in the moment.

Yeah, on that – so why are these two lawsuits running at the same time? 
Because if you have a countersue, you can’t sit on it. It’s a use it or lose it situation. The exact same trial would take place if she had sued Depp first, only the order in which they are called to the stand would be flipped – he’d be the defendant. If they did a second trial, it would be a complete waste of everyone’s time.

In the United States, there’s also something called res judicata which basically means that once a court has decided that something happens, you don’t get to redo it. Even if new smoking gun evidence came in tomorrow, it wouldn’t matter, it’d be too late. With this countersue, it’s too interlinked to be two separate issues being settled, so they run at the same time. The jury will be asked in both cases whether these incidents happened or not.

Could they both lose?
Essentially, the jury is being asked: Who’s telling the truth, Johnny or Amber? If they just truly don’t know, and are split 50-50, Johnny loses his case, because it was his burden to prove that she lied. But the same is true for Amber with her countersue, so they would both lose.

How likely is that both lose?
It’s highly unlikely. They can’t pick one side without sort of tarnishing the other. I’ve never seen a split decision where the jury just says they both lose. It’s possible, but I don’t think the jury would be taking their job incredibly seriously if that’s what they do, because their job is to decide who is credible and who is not.

How come the case is being live streamed?  
The United States isn’t so united when it comes to public access in trials. In New York, no cameras are allowed in the courtroom at the moment. In Florida, everything is live streamed. Virginia allows filming at the discretion of the judge.

In America, people are allowed into the courtroom in person to watch any court case, so often when there’s a high profile case and people can’t fit into the courtroom, judges will allow the court to live stream the case so that people can see justice taking place. In short, the judge said they could.

This is taking place in Virginia, where The Washington Post is based. If it was in California, could the outcome be different? 
Depp actually could have filed in California, because he is suing her, not The Washington Post. So he had options to sue in Virginia or California. Both have different laws. The decision was tactical.

There’s a few reasons to do the trial in Virginia. California is very protective of free speech. If you bring a lawsuit and lose, you more likely have to pay the other side’s legal fees – which in this case is several million dollars in legal fees on each side. So the stakes are higher to sue in California. Also, there was more chance of the trial being televised in Virginia. The other reason might be that Depp’s team thinks the jury pool might be better for him. I think that’s very hard to speculate, but they had the chance to consider that. 

This was a decision, just like not suing The Washington Post was a strategic decision. I think that was a very smart decision for Depp’s team. It would have been harder to sue The Washington Post, as with Depp losing his case in the UK to The Sun.

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Who do you think is likely to win?
I think this is a true toss up. I would say that Depp has brought a very effective case in terms of rebutting the allegations, and that it really could come down to who is the better actor, in terms of who has put up a better performance and come across as most believable. I thought Depp answered the questions, whereas Heard was very combative with Depp’s attorneys.

At the end of the day, it’s his burden to knock down Heard’s story to try and show it’s not true. So I can very well see this going in Depp’s favour in a way that it didn’t in the UK, because he has presented that evidence. Kate Moss saying nothing happened is especially a problem for Heard’s case, because Heard brought that up, and Moss rebuking it could be seen to undermine the integrity of Heard’s story. But it could go either way. 

How long might it take for the jury to reach a verdict? 
It’s hard to make a prediction, but in Virginia, the jury has to be unanimous. That can happen in a variety of ways, but still, unanimity isn’t always as easy to achieve as a majority. It’ll depend on how serious they are about looking at the evidence.

Usually, what they do is go back to their conference room and sift through the evidence bit by bit. But they have seen so much evidence – so in a case like this, unless they just decide that Depp or Heard is full of it and they don’t believe anything one of them says, they’ll look at the evidence and come to a verdict on each part, and then decide overall. They might want parts of the witness testimonies replayed, or they might have questions about what they should regard as evidence. So I wouldn’t be surprised if it took a few days. 

@rhysthomas