Defamation case cast mighty spell on a great nation


By Berl Falbaum

I will begin with an apology and a confession.

The apology first. I was asked if I would write about defamation lawsuits filed against each other by actor Johnny Depp and his ex-wife, actress Amber Heard. Sorry, can’t do it.

With a red face, I said I had no such plans because I had been concentrating on the Ukraine, climate change, the economy, COVID-19, Uvalde, and state legislatures working to create mechanisms that would let them overturn free and fair elections.

Then I learned of the importance of that trial when NBC Nightly News started its broadcast with the jury’s verdict in the Depp-Heard case and devoted more than seven minutes to the story. Seven minutes! How stupid could I be.

The New York Times told me on page one that the case “transfixed the nation.” Really? Was I embarrassed. So, I asked my neighbor if she was “transfixed.” I felt a lot better when she said she did not know what I was talking about.

Now for the confession. While I knew Depp’s name, I could not identify even one movie in which he starred. Worse, I never heard of Heard. I hope neither of them sues me for defamation.

In any event, given the hoopla over the verdict, I read a couple of stories and learned that the jury awarded Depp, who wanted $50 million, a mere $10 million in compensatory damages as well as $5 million in punitive damages.  

(In case you were as ignorant as I was, Depp sued Heard, claiming she defamed him when she accused him of abuse in a 2018 Op-Ed article in The Washington Post).

The jury apparently decided yes, she defamed him, but not at the level of $50 million. The defamation was worth only $15 million. As a curious newsperson, I would love to know the formula the jury used to decide how much defamation deserves one million dollars.

Heard countersued and asked for a whopping $100 million. The jury considered that even more brash than Depp’s demand for $50 million, and awarded her only $2 million. And, what’s worse, no punitive damages.

I concluded that Heard’s defamation deserved punishment but Depp’s did not. I could not find any support for that decision in “The Legal Guidelines for Punitive Damages.”

My first question after I finished my research was why didn’t the jury just award Depp $13 million. Just picture it when the respective lawyers meet to settle the suit. Heard will write out a check for $15 million while Depp will make one out for $2 million. Seems very silly to me.

Oh, I also learned that in the State of Virginia punitive damages are capped at $350,000 so the judge reduced Depp’s $5 million accordingly. Which raises the question: Why didn’t Depp file his suit in another state?

It also reminded me of my father grounding me for five days with my mother reducing the punishment to three.

The jury deliberated 13 hours which means they awarded Depp about $1,153,400 an hour but only $153,846 per hour for Heard.

Incidentally, since Depp is a public figure, under a 1964 Supreme Court decision, he had to prove that the Op-Ed article was published with knowledge that it was not true or that the author (Heard) showed reckless disregard for the truth.

Apparently, Depp’s lawyers were successful in proving that to the jury. Thus, I think Heard should sue those who helped her write the piece and the lawyers who approved it. She might even win punitive damages in such a suit.

Depp was not in court when the verdict was read. His lawyers said he was in the U.K. and would watch the outcome on TV. Thus, if he didn’t like the result, he could just change channels.

I discovered that I was in the dark for six weeks of court hearings during which the parties aired their dirty family secrets in public. I’m sure glad they weren’t my neighbors. I’d be calling the super or the cops constantly.

At the trial, lawyers from both sides played recordings made during their frequent disagreements. I am not sure why; my wife and I never recorded our spats.

Perhaps I should consider recording the next one just in case she decides to sue me for defamation.

The women’s rights movement was unhappy with the verdict since Heard came out the loser. They argued that verdict may be a blow to the #metoo movement.

However, on the other side, men responded by hoping Depp’s victory may prompt the beginning of a #himtoo crusade.

It was not quite clear at this writing whether Depp or Heard would appeal the jury’s decision. But given that lawyers generally receive about 33 percent of such verdicts, we can be confident the attorneys will appeal.
Berl Falbaum, is a veteran West Bloomfield author/journalist whose 12th book, “Code Red! Code Red!  How Destruction of the Environment Poses Lethal Threats to Life on Earth,” came out this month.