Although the jury returned with a win for Johnny Depp’s defamation case against Amber Heard, it is not over yet. Heard’s lawyers have said that she will appeal the decision, a process that will likely take years. TIME spoke to experts about what happens next in the case, Heard’s chances of winning an appeal, and how far this legal fight could go.
Here’s some background. Depp had brought Heard to court over the Washington case. Post op-ed published in 2018, in which Heard called herself a “public figure representing domestic abuse.” Heard never named Depp as her abuser. Depp still claimed the opinion piece had hurt his career. Heard then countersued, claiming that Depp’s attorney Adam Waldman, as an agent of Depp, defamed her by calling her allegations “a hoax” in the Daily Mail.
Depp’s chances of winning the case were doubtful by legal experts. Depp had previously lost a similar suit against the tabloid in the U.K. The Sun2020. The British judge in the case wrote: “I found it acceptable to continue this practice.” It Sun’s statement that Depp was a “wife beater” to be “substantially true,” and that Depp had assaulted Heard on at least 12 occasions. However, the case’s outcome was decided by a judge. The trial was not broadcast on televised as it was in the U.S.
The jury in the U.S. case awarded Heard and Depp respective damages. They found that Heard defamed Depp with “malicious” intent and awarded Depp $10 million in compensatory damages and $5 million in punitive damages. Judge Penney Azcarate then reduced the punitive damages to Virginia’s statutory cap of $350,000. Heard received $2 million as compensatory damages for her countersuit. Depp received damages, which would indicate that the jury believed Depp. Pirates of the Caribbean star when he said Heard lied about the abuse she alleged, but awarding money to Heard contradictorily suggests they believed her claims of abuse were not, in fact, “a hoax.”
Legal experts are divided on what Heard’s team will—or should—do if they plan to appeal the case. The jury seemed to find Depp’s story more credible than Heard’s. And experts agreed that appellate courts tend to be reluctant to reassess credibility judgments made by juries, even if this jury’s conclusion seemed contradictory. “Anyone appealing has an uphill battle,” says Rebekah Sullivan, a Washington, D.C., attorney who focuses on family law. Most likely, the lawyers who spoke to TIME said, Heard’s team will argue some legal error was made during trial and will try to overturn the verdict on the basis that the jury was influenced by things they saw and heard outside the courtroom.
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Whatever Heard’s team decides, an appeals court won’t hand down a ruling anytime soon. “It’s a long, expensive process,” says David Ring, a Los Angeles civil trial lawyer. According to him and others, the appeal will take at most two years. Several attorneys who spoke with TIME speculated it will cost Heard hundreds of thousands of dollars in addition to the likely millions she’s already spent in legal fees. “But when you’re facing a $15 million judgment,” says Ring, “you certainly have to probably pursue that.”
Before the appeals process even begins, experts say it’s likely that Heard (or her insurance company) will have to put up some sort of bond that shows she has or can raise the money that she owes Depp. Given that Heard and her lawyers have said this trial has been a financial burden for the actor, Heard’s ability to post the bond is not guaranteed.
If she decides to proceed with the trial, her team might have better chances in an appeals court than the five-man jury that awarded Depp damages. You could see the trial on televised, there was no sequestration of jurors, videos and memes featuring Depp or Heard as witnesses were shared on platforms such TikTok. “I would expect the appellate portion of the case, where the audience is judges, to focus more on legal arguments and a lot less on the theatrics that we saw in the trial where the audience was a jury,” says Sullivan.
Ring agreed: “It was a spectacle,” he said of the original trial.
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On appeal, there would be no cameras and no opportunity for Heard’s testimony to be picked apart, edited, and misconstrued on social media. In Virginia, three judges on the Virginia Court of Appeals will decide the case mainly by going through any documents that were written by lawyers for each side. The outcome of the case can then be appealed either to the Virginia Supreme Court or to the U.S. Supreme Court.
According to experts, there are a number of arguments Heard’s team could make. Elaine Bredehoft, her attorney, made remarks after the trial which would suggest she will be focusing on evidence. She has suggested that some pieces of evidence Depp was able to introduce were “prejudicial” while certain evidence from Heard’s team was “suppressed” at trial, including evidence that was permitted in the U.K. trial but not the U.S. one.
“This trial judge let in a lot of evidence in this case. I mean, a lot,” says Ring. “I think things went kind of far afield from what the real issues were…So that’s the basis for an appeal, though not necessarily a great basis for appeal.” He adds that evidentiary rulings are rarely the basis used by an appellate court to overturn a jury verdict.
Mary Anne Franks, a professor at University of Miami School of Law who focuses on civil rights, says that Heard’s team might challenge the judge’s decision to allow the trial to be live-streamed, “a particularly unusual decision given that the case involved allegations of sexual abuse and domestic violence,” as well as the judge’s decision not to sequester the jury which resulted in “a trial by social media.”
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Azcarate repeatedly reminded the jury to stop watching news at night about the trial. Even logging on to Instagram, Twitter, or TikTok could have led jurors into memes about this case. This includes unfounded claims that Heard faked bruises or persuaded witnesses lie.
“I actually think that’s a pretty good argument,” says Sullivan. “What was so extraordinary about this trial is the social media and news coverage of it, kind of a circus of public opinion. This case is a great example of how your jury can go home. Their families will certainly be following it. The tweets and TikToks are what they see. The jury, which is not being sequestered, will be exposed to information that was not admissible at trial. So to the extent that Heard’s lawyers can argue they were influenced by outside factors that weren’t admitted in trial, that actually has a pretty high likelihood of success, in my opinion.”
But Ring believes that argument would be “a loser” on appeal because, he says, the idea of sequestering juries has fallen out of favor in modern courtrooms. “It’s just not realistic to sequester juries for six weeks without their phones anymore,” he says. Heard’s team can, however, interview the jurors from the trial about why they ruled the way that they did. “If they interviewed them and the jurors say, ‘We followed TMZ every night,’ OK, now you’ve got a basis for appeal. But I don’t think anyone’s going to admit to that if it happened.”
Many legal commentators have questioned whether Heard’s 2018 op-ed actually rises to the level of defamation considering the specific words in the piece. “Given that the op-ed never mentions Depp’s name and is largely devoted to the broader topic of the challenges facing women who speak out against abuse, it strains credulity to argue that the op-ed harmed Depp in any meaningful way,” says Franks. “And especially in any way related to his career, which was already struggling due to well-documented behavioral issues.” In fact, Franks points out, Heard did not write the headline for the piece, one of the statements at issue. It was merely retweeted by her.
Sullivan also thought Heard’s team could focus on the headline when they appeal. Defamation—or the act of damaging someone’s good reputation with a false statement—is, essentially, an exception to the First Amendment right of freedom of speech. However, if those who only retweet news articles can be found guilty of defamation if they are inaccurate, this could pose major First Amendment issues for millions upon millions of Twitter users. Sullivan said that it’s possible Heard’s lawyers could leave open the option to take the case to the Supreme Court by focusing on this First Amendment issue. “They will be sure to include a First Amendment claim if they want to take this all the way,” she says.
Although legal experts differ on whether Heard has a case against Depp, the majority of them agree that it might be worth taking on for Heard. “In no way, shape, or form,” says Ring, “is this a slam-dunk winner for Johnny Depp on appeal.”
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