Over the past month, Virginia jurors have been witness to a tabloid scene. Johnny Depp and Amber Heard took turns revealing every detail of their four-year relationship, including serious allegations of bloody violence and sexual assault, as well as mere horrific accounts of screaming altercations, drug use and bowel movements. Heard will regain the situation on Monday as she seeks to convince a jury that Depp physically abused her. The trial will run through early June.
This is an outcome that teams of lawyers tried so hard to avoid in 2016, when they drafted the couple’s divorce settlement. Under the terms, $7 million was paid to Heard and the parties agreed to terms of non-derogation and confidentiality. One of the goals of the agreement was to achieve “the willingness and mutual desire of the parties to resolve any and all issues relating to the petitioner’s allegations of domestic violence.”
Non-disclosure agreements have gained notoriety in the #MeToo era, as more is learning about how they are used to cover up systemic abuse. California has gone so far as to ban them in cases of sexual harassment and discrimination. But they can also finalize chaotic situations and allow both sides to go their separate ways in peace. If the NDA in Depp-Heard’s divorce case were to stall, the jury wouldn’t have to decide who was telling the truth about a relationship that ended six years ago.
In the agreement, Depp and Heard promised not to make any “insulting, insulting, critical or accusatory statements, either directly or indirectly, express or implied” about each other.
It can be argued that Heard violated this ruling when she posted it December 18, 2018, Washington Post article. Although she didn’t mention Depp by name, she clearly alluded to her past allegations of domestic violence, and said she “felt the full force of our culture’s anger toward women who speak up.”
Depp is now suing Heard over this column. But he is not suing her for violating the settlement agreement. Instead, he files a defamation lawsuit, which requires him to prove not only that Heard underestimated him, but also that she fabricated her allegations. This is a much higher bar, and Many legal experts They doubted that he would be able to explain it.
In addition to Heard’s testimony — which detailed graphical details of several of the alleged assaults — the jurors also viewed contemporary treatment notes, photos of a bruise on Heard’s face, and text messages from Depp, including one in which he admitted he “had sex and went too far in our fight.” The couple’s therapist – advocated by Depp’s lawyers – also testified that they had engaged in “mutual abuse”, and that she had “gone her best”, which, if true, would not help Depp’s case.
A source close to Depp said he has a number of legal paths available to him, but declined to speculate on why he chose to file a defamation lawsuit, rather than breach of the settlement.
Lee Berlake, his Virginia libel attorney wrote about the case, indicated that Depp would be able to recover higher damages for defamation than for breach of contract. Depp is seeking $50 million – claiming he lost out on his sixth “Pirates of the Caribbean” movie because of its opening. Berlik also suggested that the editorial may have been vague enough not to violate the agreement.
Another factor was that the settlement agreement included an arbitration clause, which would have kept the dispute confidential. Any claim relating to the breach will be heard by Louis Meisinger, a retired judge who has served as mediator in a number of high-profile cases, including a sexual misconduct lawsuit against James Franco.
Instead, Depp filed a defamation lawsuit in civil court in Virginia, ensuring that all of the couple’s allegations were publicly broadcast. The trial is now broadcast live on YouTube and on Court TV, and the outcome will be determined by its impact on public opinion as much as the jury’s verdict.
Heard’s side declined to comment for this story. But her lawyers asserted during the trial that she had relied on legal advice when she published her article. That advice would have included considerations of defamation and breach of the settlement agreement, and she was prepared to defend herself either way.
Her lawyers had insisted that she delete a line from the op-ed saying she had obtained a “temporary restraining order from my husband at the time” – an apparent reference to the couple’s divorce proceedings, which were covered by confidentiality law. Heard wanted the reference in the final version, according to the ACLU’s general counsel, but eventually heeded her lawyer’s advice and was deleted.
The final draft only stated that Heard had become a “public figure representing domestic violence”. If Heard is on trial for breaching the agreement, her attorneys will undoubtedly argue that the opinion piece was not about the couple’s marriage or divorce, or about allegations of domestic violence, but only about the public reaction to these allegations.
But the language not to be taken lightly is very broad, covering even “implicit” negative statements. By placing her experience in the context of the #MeToo movement, it can be argued that Heard was once again accusing Depp. A Virginia judge, Bruce White, ruled in 2020 that the op-ed made a potentially defamatory meaning — that Depp misused Heard — though he didn’t explicitly say so, and it’s possible to imagine an arbitrator reaching the same conclusion in a suit for breach.
Heard’s lawyers are now trying to convince the jury that the opinion piece did not include libelous meaning, but only made valid statements about the backlash that Heard faced. If the jurors agree, they don’t have to get to the question of who’s telling the truth until they dismiss Depp’s lawsuit. As a precaution, though, they also argue that Heard’s abuse allegations are true. If the jury agrees, or decides that Depp has not been proven false by an abundance of evidence, Heard will win, too.
In the divorce settlement, the couple’s lawyers found a way to surround these questions without a clear resolution of the truth of the matter. The terms included a joint statement to be issued on behalf of the couple: “Neither party made false accusations of financial gain. There was no intention of physical or emotional harm.” The statement left open the possibility that Depp was violent (acknowledging only that there was “no intent”) and also that Heard was lying about it (acknowledging only that she did not lie for “financial gain”).
At the witness stand, Depp said the statement was written by “lawyers” and explained that he was not happy with it.
“The advice I got was not to fight it,” he said. “I didn’t have a lot of options.”
The last line of the statement now reads as if it had been written in a different world.
“There will be no more public statements about it.”
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