Jurors in the defamation trial between Johnny Depp and Amber Heard will not consider whether Adam Waldman, Depp’s former attorney who was kicked off of the case, had free speech protections when he made allegedly defamatory statements against Heard.
In a significant decision on jury instructions, the judge in the case sided with Heard’s lawyers on Thursday, saying that Waldman does not qualify for privilege, a form of defamation immunity, because his statements were not in reaction to anything Heard said or wrote. A decision in favor of Depp might have resulted in jurors voting to deny Heard’s $100
The trial’s focus is on Heard and Depp, with Waldman, other than Heard and Depp, serving as the main character. Through Waldman, Depp is accused of defaming Heard by labeling her claims of abuse a fraud.
Ben Rottenborn, representing Heard, said of Waldman that it cannot be the case “that defending yourself through judicially immune statements in a lawsuit entitles someone to go out and say whatever they want to avail themselves to privilege.” He called Waldman — thrown off of the case for leaking information covered by a protective order to the press — Depp’s “attack dog.”
Depp’s lawyer referred to an article in The Sun that labeled the actor a “wife beater” when asked about Heard’s assertions that Waldman was responding to his claim for a privilege defense.
“They have to be Ms. Heard’s statements,” Fairfax County Circuit Court Judge Penney Azcarate replied.
On jury instructions, as with everything else, it’s all about the details. They instruct juries on how to apply legal standards, how to evaluate certain evidence and objections, and so on. In a lengthy trial with numerous witnesses and exhibits, jury instructions are sometimes fiercely disputed.
In his recent deposition, Depp maintained that the issue of whether Waldman qualifies for privilege should be determined by a jury. People may use the defense of defamation in response to an allegedly defamatory statement from someone else, as long as they file a claim.
Samuel Moniz, representing Depp, said, “The statements were clearly in direct response to Ms. Heard’s allegations on their face. Whether that response was fair and reasonable is a jury question.”
At first, it appeared that Aneczarate was on Depp’s side. Whether or not the case is a question of law is one of the major issues in dispute, she said the question swings on “whether or not there is any evidence that a jury can find [of Waldman’s statements] being protected speech.”
The judge added, “I don’t think it’s my role to weigh that evidence.”
The discussion turned when Azcarate pressed Depp’s lawyers on specific statements from Heard that Waldman was responding to. She ultimately refused to deliver Depp’s requested jury instruction, emphasizing that privilege can only be claimed if there is no intent to harm.
“The only way to find defamatory statements in this case is if there’s actual malice,” Azcarate said. “That’s unique to this case, and I understand that. But if they find actual malice in the defamatory statements, you don’t have protected speech privilege anyway.”
In order for Heard to win her counterclaim, she has to prove that Waldman made the statements he made about her with actual malice. This means that he knew the claims were not true or that he acted with reckless disregard for whether they were true or not.
The judge agreed with Depp’s lawyers that jurors should not think that the objections during Waldman’s deposition meant anything.
“To be fair, you wanted to keep [the objections] in,” Azcarate told Rottenborn. “You wanted to leave them to show that you asked the questions, and they weren’t answered. But you can’t infer from that, ‘Oh, they’re hiding something.’”
Waldman asserted attorney-client privilege to refuse to answer questions that would have supported the idea that he was acting on behalf of Depp when he made the allegedly defamatory statements.
If the jury felt it was necessary, the jury could award punitive damages to the plaintiff.
Heard on Thursday resumed her testimony as the final witness in the trial when jury instructions were addressed. She described how Waldman’s allegedly defamatory statements continue to harm her career.
“If I’m training for a combat scene for Aquaman and a trigger happens, I have a meltdown and have to deal with that,” Heard said. “The crew I work with has to deal with that, because of the damage I walk around with every single day from what I’ve lived through.”
When asked if she was surprised by the number of people that have testified in support of Depp, Heard responded by saying that is why she wrote an op-ed. In it, she talked about how so many people are willing to overlook his abusive behavior.
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