Amber Heard and Johnny Depp watch as the jury leaves the courtroom at the end of the day at the Fairfax County Circuit Courthouse in Fairfax, Va. on May 16, 2022.
When Johnny Depp and Amber Heard’s widely watched defamation trial goes to deliberations, a Virginia jury probably won’t sweat the finer points of the state’s defamation law as much as the fundamental question of whose story they believe, a media law expert told Law&Crime.
“I think that on both sides, it’s going to come down to who’s telling the truth,” attorney Mitchell Epner, a partner at Rottenberg Lipman Rich, P.C., said in a phone interview. “There really isn’t space for them both to be telling the truth.”
To cite the most dramatic example, Depp and Heard’s accounts of what happened in Australia in March 2015 illustrate the stark divide. Both claimed that the other committed an alarming assault with a liquor bottle—and denied the other’s allegations. According to Depp, Heard threw a vodka bottle at him that shattered and sliced off one of his fingertips, when his hand was wrapped over a bar. Heard accused Depp of raping her with a bottle, during what she described as Depp’s three-day bender on eight to 10 pills of MDMA.
“These Two People Know What the Truth Is”
Under the typically weighty actual malice standard established under New York Times v. Sullivan, Epner noted, a litigant might struggle to prove that someone knowingly made a false statement or had a reckless disregard for the truth.
“In the case of Johnny Depp vs. Amber Heard—and the countersuit—that issue does not really arise, because there is no question here that these two people know what the truth is,” noted Epner, who has represented…
