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Amber Heard Loses Big in Virginia Courtroom: Johnny Depp’s Defamation Lawsuit Moves Forward to Trial


US actor Johnny Depp (R) and his wife Amber Heard arrive at a court in the Gold Coast on April 18, 2016.

A Virginia judge slammed Amber Heard’s attempt to dismiss Johnny Depp’s defamation lawsuit, calling it “misguided” and “puzzling.” As a result, Depp’s lawsuit against his former wife will move along toward trial, which is scheduled for next year.

Depp has been involved in two separate lawsuits (one on each side of the Atlantic Ocean, to be exact) over Heard’s ongoing allegations that Depp was physically abusive to her during their marriage. In the UK, Depp sued British outlet The Sun over an article describing him as a “wife beater” in a headline; Depp’s claim was dismissed after a British court held a three-week trial and found the the headline had been “substantially true.”

In a separate case proceeding in Fairfax County Circuit Court in Virginia, Depp sued Heard for defamation in connection with Heard’s 2018 Washington Post op-ed, in which she spoke out about being the victim of domestic violence. Heard’s article did not specifically name Depp as her alleged abuser, but according to Depp’s lawsuit, it relied “on the central premise that Ms. Heard was a domestic abuse victim and that Mr. Depp perpetrated domestic violence against her.”

Following the UK’s ruling against Depp, Heard moved to dismiss the case in Virginia. In her motion, Heard made a number of legal arguments, all of which amounted to the same ask: that the Virginia court simply use the UK court’s finding that it is “substantially true” that Depp is a “wife beater.”

Under American law, there are several mechanisms by which a court will rely on the factual findings in one case for use in a separate case. These legal concepts include collateral estoppel, res judicata, and comity — all of which require a party to convince a court of the fairness of one court’s deferring to another court’s findings. Chief Judge Penney Azcarate rejected Heard’s arguments outright, finding that there is no legal basis for using the foreign court’s ruling in favor of The Sun as a means for Heard to dismiss Depp’s libel claim against her.

Judge Azcarate issued a lengthy opinion letter in which she detailed the many shortcomings of Heard’s legal arguments. Primarily, the problem was that Heard hadn’t been a party to the UK case. Therefore, Depp did not have “a full and fair opportunity to litigate” his defamation claim against Heard. As the judge pointed out, it would have been impossible for Depp to fully litigate that claim, because Heard’s op-ed was not even published until after the UK action commenced.

As the judge’s opinion explained, Heard argued that the court should apply collateral estoppel, and thereby allow the UK court’s finding to support her defense in Virginia on the basis that Heard was “in privity with The Sun because they both had the same interest in the case.” Azcarate completely disagreed, ruling that “for privity to exist, [Heard’s] interest in the case must be so identical with The Sun’s interest such that The Sun’s representation of [Heard’s] interest is also a representation of [Heard’s] legal right.” The judge found that it would have been impossible for The Sun to adequately represent Heard’s interests given that the cases related to two separate publications. “Although the claims are similar in the sense they both relate to claims of abuse by [Depp],” wrote the judge, “the statements being defended in the UK case are inherently different than the statements published by [Heard].”

Calling Heard’s attempt to use of another legal doctrine (this time, res judicata) “especially puzzling,” Azcarate wrote:

At the time Plaintiff initiated his suit against The Sun, Defendant had not even released her op-ed. Plaintiff’s defamation claim in the UK was based on completely different statements than the present case. The specific statements uttered in defamation cases are incredibly important.

Judge Azcarate similarly dispensed with Heard’s arguments that the doctrine of comity or the Uniform Foreign-Country Money Judgments Recognition Act support her attempt to dismiss Depp’s claim based on The Sun‘s courtroom victory.

Heard tried one last argument in her motion to dismiss — namely, that the Virginia court must recognize the UK judgment or risk setting a “dangerous precedent” that would create a “chilling effect” for other victims of domestic violence. Azcarate used her opinion to school Heard on some differences between American and British defamation law. “[D]efamed parties,” explained the judge, “are more likely to bring suit in England in general due to their more favorable defamation laws.” As a result, the real risk is that a defamation plaintiff will use a favorable ruling in England to circumvent the stricter American requirements. “If anything,” wrote Azcarate, “upholding English libel judgments in the United States would create the chilling effect and could create a dangerous precedent.”

Although the judge called Heard’s arguments “misguided and only thinly supported by preexisting law,” she declined to issue sanctions that Depp had requested.

Johnny Depp has recently been vocal about feeling “boycotted” by Hollywood in the wake of the UK court’s decision. He has not yet made public statements about the Virginia court’s ruling, and neither Depp’s nor Heard’s legal team immediately responded to Law&Crime’s request for comment. But one of Depp’s lawyers reportedly described the actor as “gratified” by the latest development in Virginia.

[Image via Patrick Hamilton/AFP/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos