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 key ruling on jury instructions, the judge overseeing the case sided with Heard’s lawyers Thursday that Waldman does not qualify for privilege, a defense from defamation, because his statements were not in response to anything Heard said or wrote. A ruling the other way could have led to jurors outright denying Heard’s $100 million counterclaim against Depp.
Other than Heard and Depp, Waldman is the central figure of the trial. Heard has claimed that Depp, through Waldman, defamed her by calling her abuse accusations a hoax.
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 the case for leaking information covered by a protective order to the press — Depp’s “attack dog.”
Asked about Heard’s statements that Waldman was responding to entitling him to a defense of privilege, a lawyer for Depp pointed to an article in The Sun that called the actor a “wife beater.”
“They have to be Ms. Heard’s statements,” Fairfax County Circuit Court Judge Penney Azcarate replied.
Trials are won and lost on jury instructions. They tell jurors how they should apply legal standards, treat certain evidence and consider objections, among other things. Jury instructions can get hotly contested, especially in a long trial with dozens of witnesses and exhibits.
Depp argued that the question of whether Waldman qualifies for privilege should be decided by a jury. Under defamation law, people can claim the defense if they’re sued for defamation responding to an allegedly defamatory statement from someone else.
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.”
Azcarate initially appeared to side with Depp. Disagreeing with Heard’s attorneys on whether the issue is a matter of law, 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 to which Waldman was responding. She ultimately refused to deliver Depp’s requested jury instruction, emphasizing that privilege can only be claimed if there is no actual malice.
“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.”
For her to prevail in her counterclaim, Heard has to prove that Waldman made the allegedly defamatory statements with actual malice, or the knowledge that he knew his claims were lies.
In another ruling on jury instructions, the judge agreed with Depp’s lawyers that jurors should be told not to draw inferences from their objections during Waldman’s deposition.
“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.’”
During his deposition, Waldman asserted attorney-client privilege to refrain from answering questions aimed at supporting claims that he was acting on behalf of Depp when he made the allegedly defamatory statements.
The judge also allowed jurors to award punitive damages if necessary.
Before jury instructions were discussed, Heard on Thursday returned to the stand as the last witness in the trial. She testified about the extent to which Waldman’s allegedly defamatory statements continue to hurt 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.”
Asked on cross-examination if she’s surprised about the number of people who have testified in support of Depp, Heard responded, “That’s why I wrote this op-ed. Because I was speaking to that phenomenon — how many people will come out in support of him and won’t fault his power.”