Law&Crime Sidebar - Amber Heard's New High-Profile Lawyers: Who's Paying and Can She Win Her Appeal?

Episode Date: August 17, 2022

Description: Actress Amber Heard announces her lead counsel, Elaine Bredehoft, is stepping down as she hires two new lawyers to handle her appeal in the defamation case with her ex-husband, Johnny Depp. Her new lawyers helped the New York Times win a defamation suit filed by Sarah Palin. But can they help Heard? Law&Crime's Angenette Levy and plaintiff's attorney Katherine Lizardo, take a deep dive into the appeal, the new lawyers, whether Heard can win, who's paying and more.PLEASE SUPPORT THE SHOW:Get 20% OFF @manscaped + Free Shipping with promo code SIDEBAR at https://www.manscaped.com/ !GUESTS:Katherine Lizardo, Legal Analyst, Lawyer: https://twitter.com/klizardoesqLAW&CRIME SIDEBAR PRODUCTION:YouTube Management - Bobby SzokePodcasting - Sam GoldbergVideo Editing - Michael DeiningerGuest Booking - Alyssa FisherSocial Media Management - Kiera BronsonSUBSCRIBE TO OUR OTHER PODCASTS:Court JunkieObjectionsThey Walk Among AmericaCoptales and CocktailsThe Disturbing TruthSpeaking FreelyLAW&CRIME NETWORK SOCIAL MEDIA:Instagram: https://www.instagram.com/lawandcrime/Twitter: https://twitter.com/LawCrimeNetworkFacebook: https://www.facebook.com/lawandcrimeTwitch: https://www.twitch.tv/lawandcrimenetworkTikTok: https://www.tiktok.com/@lawandcrimeSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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keep you on the edge of your seat. Don't let your fears take hold of you as you dive into this addictive series. Love thrillers with a paranormal twist? The entire Oracle trilogy is available on Audible. Listen now on Audible. But what would Amber Heard's motive be for creating the hoax? Elaine Breta Hofft steps down from representing Amber Heard during her appeal in the defamation case with Johnny Depp. But Ben Rotten Born stays. Under the First Amendment, the statements have to be false in order for Mr. Depp to win. And now two lawyers have joined the team. So what's the strategy? And will new lawyers help her win her appeal? I'm Ann Jeanette Levy and welcome to this latest edition of Law and Crime Sidebar podcast, where we're taking a closer look at Amber Heard's new appellate lawyers and the issues she could face on appeal. Earlier this week, it was actually Monday at 9 a.m. Eastern Time. We got an email from her team saying that she had hired two new lawyers. Their names are David L. Axelrod and Jay Ward Brown, and they are with the law firm Ballard Spar. And they've joined her appellate team as lead counsel. The pair successfully defended the New York Times against a defamation lawsuit filed by Sarah Palin earlier this year. And in a statement, both of the attorneys said that they welcome the opportunity to represent Ms. Hurd in the appeal as it's a

a case with important First Amendment implications for every American. So they are focusing on the First Amendment issue in this case, which is interesting because that's what Ben Rottenborn focused on during his representation of Amber Heard during the trial. To discuss this and what issues Amber Heard faces on appeal is Catherine Lozardo. She is a plaintiff's attorney out of Texas. And she and I covered the Depp Heard case together and have covered every twist and turn along the way. So Catherine, welcome back to Sidebar. Thanks for coming. on. Thank you for having me again, Angelette. Catherine, what is your first reaction to hearing about David L. Axelrod? And this is David L. Axelrod, not the David Axelrod who worked for President

Obama, both in the White House and on his campaign. This is somebody else. And Jay Ward Brown of Ballard Spar, both of them, joining Amber Hurd's appellate team as lead counsel. You know, we mentioned that they represented the New York Times successfully against Sarah Palin earlier this year. I don't think that was a particularly hard case for the New York Times to win, given the facts in that case. But what do you think of her bringing these two attorneys on? Well, my first reaction as to Amber Hurd hiring appellate attorneys is it was something I expected. And I believe they had to do that. It's not uncommon for people to hire a separate lawyer for the appeals process because the appellate court is a completely different ballgame. It's not the same as the trial court. And it, the appellate,

lawyers have to have a certain demeanor, have to be very good with their writing skills because most of the arguments happen during the briefs, which are the legal arguments that they present to the court, even before they have the oral arguments in front of the appellate judges. So I'm not surprised that Amber Heard hired new attorneys. And in terms of the lawyers that she hired, it's very interesting because, well, first of all, they are appellate lawyers. So that's great. And as you mentioned, that they represented the New York Times. So they're very versed with the First Amendment issues. And also, I read their bios on their website, and they have done a lot of appellate work. They're not just trial lawyers, but also have done

appellate work. That's a good skill for appellate lawyers for them to hire. So in terms of actually using the same Ballard Spar as the law firm to represent them, I find it very interesting because, as you know, Ballad Spar was the law firm that represented TMC at Johnny Depp's trial where they filed a motion to intervene, and that is to basically stop Morgan Tremaine from testifying. The reason I find that interesting is because Amber Heard is claiming First Amendment issues again. And First Amendment issues will always be an argument for Amber Hurd and her legal team because it's really their only game, their only play here. So they would have to focus on that on appeal. And Morgan Tremaine's ability to testify as a rebuttal witness at trial

was important because, as we know, First Amendment, truth is always a defense. And with Morgan Remain's rebuttal testimony, one of the truths of Amber Heard's testimony got shattered and her credibility was significantly affected to the jury. So I think it's an interesting coincidence and I wonder if it's even a coincidence. Support for Law and Crime Sidebar is brought to you by Manscaped. They are the absolute best in below the waist grooming. And let's face it, everybody likes to be well groomed and no one wants to have too much hair in certain places or anywhere for that matter and Manscaped will help you with that. The performance package 4.0 by Manscaped is here and people are absolutely obsessed with it. People talk to me about it all the time and when you order yours

and open it, you will find the lawnmower 4.0 trimmer, the weed wacker ear and nose hair trimmer, crop preserver deodorant, crop reviver toner, performance boxer briefs, and a travel bag to hold all of it. Best of all, the lawnmower 4.0 is waterproof. Get that. And it has a 4,000K LED light so you can get that precise shave and not leave hair all over the sink or in the shower. More than 5 million men around the world trust Manscape to take care of all of their grooming needs. Get 20% off when you enter the code sidebar on Manscape.com. Again, that's 20% off when you log on to Manscape.com and enter the code sidebar. What are you waiting for? Everybody he's talking about it. And Morgan Tremaine was the person who handled the so-called the infamous kitchen

cabinet video. He said he came forward because he saw what had been given to TMZ had been cut off at the beginning in the end where Amber Hurd was setting up the camera and where he said she appeared to snicker at the end. So he was upset about that. He also dispatched the camera crew to the courthouse back on May 27th of 2016 when Amber Hurd filed that domestic abuse restraining order. And the thing that was important about his testimony was that he said he was dealing directly with the copyright holder when he was taking in that video for TMZ. So within 15 minutes, he was able to get that video and post it to TMZ's website. The copyright holder, of course, would have been Amber Hurd because she's the one who actually owned the video and shot the video. So that was kind of a roundabout way for the

a Depp team to get that in. Also, Catherine, I think it's important that we point out the motion to intervene, as Judge Escarati said during her ruling, was the wrong motion for TMZ to file. She said motion to intervene, and I actually thought that was weird too. I would have thought just maybe some type of other motion where you're asking to far his testimony based on, you know, TMZ's objection would have been more appropriate. Yes. And it's true that the motion to intervene was not the proper motion. The problem that TMC had was there was no. no other legal mechanism for them to actually interject themselves into the trial because they were not a party to the trial and they had no interest in whatever the claim is at the trial,

which Judge Ascarati appropriately ruled on and said, I'm sorry, TMC, this is not the proper motion, you're not a party, and even the issue of defamation is not an issue for you to be a part. That's why Judge Escarati allowed Morgan Tremaine to testify. That's why I think one of the issues on appeal would be regarding who holds the journalistic privilege. Is it TMZ or is it the journalist himself? And what happens when that journalist is a former employee? What's the mechanism for an entity like TMC to stop them from testifying if they are willing, if the journalist is willing to testify. And I think it's important that we point out too. Morgan Tremaine was not forced to testify. He came forward of his own volition to the Depp legal team after watching

the trial and seeing the kitchen cabinet video and hearing some other testimony. So nobody forced him to come forward and reveal a source or anything like that. He did it on his own. So I think that's important to point out as well. Exactly. He's actually one of my favorite rebuttal witness because again, truth is the defense, and I think he provided the truth there. So he's one of the heroes for Johnny Depp's legal team. Now, I want to read the statement from Amber Heard that she released through her spokesperson when announcing her new legal team. She wrote, when it comes to protecting the fundamental right of freedom of speech, we look at the jury's decision to paraphrase a famous quote, not as the beginning of the end, but merely the end of the beginning. A different court warrants

different representation, particularly as so much new evidence, is now coming to light. The minute I read the whole new evidence part of this, Catherine, I thought to myself, I don't understand what she could be talking about because as far as I am concerned, when you're doing an appeal, there's no new evidence allowed. You have the record and the law. And that's what you look at for errors on the part of the court. Exactly. And quite honestly, on janet i thought the whole statement not just that part but even the quote did not make sense for me and we can talk about that separately but in terms of the new evidence you're right the appeals process is not a new trial so people have to remember that the appeal is not a new trial so that no new

evidence will be admitted in the court of appeals it will be limited to whatever evidence was entered in the trial court, in Judge Escarati's court, whatever order, whatever ruling, whatever testimony. That's what is going to be looked at by the court of appeal. And this is a civil trial. It's not a criminal case that is being appealed. So the bar of what evidence the court of appeal will look at will really be limited to what was the record in the lower court. Now, in terms of new evidence, if they're talking about really extremely exigent circumstances that happened after the trial, let's say something involving the jury, and I mentioned that because they were honing in on juror 15, and they're claiming that they found out that information after the fact, after the verdict, which Judge Ascarati in her order already addressed that, no, you should have known this even before the trial. those are the only issues I could think of that they will raise on appeal that maybe they are still digging up new information about the jury. But other than that, I can't, I can't imagine what

else they could bring because it's not allowed legally. And in criminal cases, you know, this is different. This is a civil case. But in criminal cases, there are times when so-called newly discovered evidence can be considered on appeal. And then sometimes it's sent back to the trial court. If there is truly newly discovered evidence. And I say that because that's basically evidence that wouldn't have been available at the time of trial. I mean, there are all kinds of rules about that. How often are civil cases overturned and thrown out, Catherine, and a new trial ordered on a case like this? Very rarely, because the standard, again, is much lower for a civil trial than a criminal case that you mentioned. That's why in criminal cases, they are,

the judges, appellate judges, are much more critical and much more cautious. But this is a civil defamation case. There were a lot of evidence presented during a six-week trial. So the Court of Appeals will have a very hefty record to look at. I used to be an extern for the Ninth Circuit Court of Appeals, which is the federal level. And here we have the state Virginia Court of Appeals, but it has similar procedures. And when we used to review the records and the appellate briefs, we literally are limited to whatever the records that were presented to us by both parties. That's why Johnny Depp had to file his own appeal as well.

That's one of the reasons, I believe, is because they wanted to make sure the record to the court of appeal is complete so that they have the right to make sure everything that was critical. in Judge Oscarati's court is admitted in the court of appeal so they can look at that. Other than that, new evidence is not allowed. Catherine, during the trial, Amber Heard and Elaine Bretahoff both basically said that Amber Heard was paying her legal bills. We found out after the trial that her homeowner's insurance, Travelers, has that policy, was actually paying the legal bills and to date has paid more than $8 million for her legal bills.

Can you even imagine? So going forward, is travelers still going to foot the bill for the? this appeal? It really depends on the language on travelers' policy, because if the policy language says that they are still on the hook and appeal, then most likely they are going to pay for the appeal. But here's the issue, though, is the verdict had actual malice. The jury verdict found actual malice against Amber Heard, and most insurance policies actually had that as an exclusion, Meaning that if you're found with actual malice or intent, wrongful intent, then the policy is not applicable anymore and they don't have a duty to pay your attorney's fees.

So I'm curious what travelers will do here if they make a gamble and say, hey, you know what, we're just all in, we'll just pay all the legal bills, even up to the appeal, and then we'll sort that out. What usually happens is travelers have to approve first the lawyers, appeal lawyers to hire and also their rates. So if travelers is paid for the appeal, I would assume they approve the new appellate lawyers. And also it makes a question as to maybe that's why Elaine Redauff had to step down because travelers don't want to pay for multiple lawyers as to having Roddenborn there and Elaine Redahoff also there for the appeal, because that's a lot of lawyers and legal bills to pay. And like you said, they've already foot a bill of $8 million.

On top of that, New York Marine, which is the separate insurance that is suing Amber Hurd, they haven't approved the appellate lawyers as well. So that will be a contention in their separate lawsuit as to the bills piling up, and New York Marine has no way to stop Amber Heard's legal team from incurring those. fees. And then at the end of the day, they will be on the hook for that. That is going to be an interesting legal battle for them. So, Catherine, there's been a lot of focus in the statement and by Ben Rottenborn. I mean, he was all about the headline, the statements made, the alleged three defamatory statements, just the fact that the First Amendment protected this speech. But couldn't you

look at it from the other side of the coin too and say, well, then Adam Waldman's statements were were protected as First Amendment, you know, under the First Amendment because he believed what he was saying was true. So, I mean, it's a double-edged sword here if you're going to hang your hat solely on a First Amendment argument. And we have to keep in mind that the First Amendment does not protect defamatory statements. It means it doesn't protect lies made with actual malice. Exactly. And I think that you really hit it on in terms of Amber Heard's legal team can't argue one way and disallow it for Johnny Depp's team. And Roddenborn was focusing a lot of the defamation issues during his opening and closing arguments and even throughout the trial. And I think that's one of the major reasons why he's still on the legal team because most likely when Elaine Reda Hoff and Roddenborn were divvying up the legal arguments, Roddenborn was the one who was focused on that. And so it makes sense for him to stay on with the legal team as it goes to the appeal because he will know the new one says. He will know certain facts that the new appeal lawyers won't know. So they need someone from the trial lawyers to help them out and make sure they know every single nooks and cranny of the trial. But isn't the crux still what was the truth? And the jury was tasked with hearing the evidence and

determining as the finder of fact, determining the truth? Definitely. The truth is always the defense for these defamation case. And we saw, and I say we as in the public saw what the truth was based on the evidence that we looked at. Before this trial started, I was not a pro-deb or pro-amber heard. I just wanted to see what the facts would be. And as I watched evidence, as a lawyer, as a perspective of a legal professional, I started seeing the evidence. And I thought this, yes, the verdict for Johnny Depp was very appropriate based on the overwhelming evidence and the truth being the defense for his defamation case. It's interesting to me that that is still such a point of contention here. And it's still divided people so much because I think that a lot

of us watching every minute of this trial felt that Johnny Depp's team and their case in chief put on a really strong case. I mean, I think we were all a little surprised at how strong the case was. So I didn't find the jury's verdict surprising in the least. I do want to go back to, circle back to Elaine Brettahoft, the lead counsel during the trial for Amber Hurd. She released a statement saying, this is the perfect time to pass the baton. I have pledged to Amber and her appellate team, my complete cooperation and assistance as they move forward on a path towards success. I find this interesting because she was lead counsel. So she would have been calling most of the shots, I would think. You know, if Rottenborn said, well, I want, you know, I think we should do this. I mean, she would have been able to, I guess, to overrule him. I don't know that, but that's just my thinking. Is there any argument to be made at at the appellate level in a civil case that she wasn't effective in representing Amber and therefore deserves a new trial? Hmm. That is an interesting take on that. And to be honest, I haven't thought about that part.

only because Amber Heard and Elaine Breederhoff seemed to be very close and tight-knit. We've seen Elaine being part of Amber Heard's legal team, even at the UK trial. Elaine was there when Amber Heard won the UK trial and was giving a press release. And so Elaine has been with Amber Heard this whole time, and it did surprise me that she stepped down because she really did not need to step down. She could just be on board, like you said, with Robden. board and just helping the appellate counsel with the appeals process. She's right that this is the right time to pass the baton if there is a baton to be passed

in terms of changing counsel. But since she's been here for such a long time, that's why it's very surprising. Now, whether or not Amber Hurd will go after her for possible insufficient counsel, that will be something interesting to see because Elaine Redahoff was the one who was trying to defend Amber Heard during her testimony. And we saw how Elaine was having difficulty in terms of Camille Vasquez's direct examination with Amber Heard. And then Elaine had to come in for a rebuttal.

And she had a hard time with that with all of the objections that Camille appropriately raised. Do you recall... I'm trying. I'm trying. Catherine, I think it's important to note, too. A lot of people on Twitter at least found it somewhat comical that Elaine Bretahoff in her statement used the word pledged, given how much we heard about versus donation, donate during the trial. So just a little funny thing I thought we should mention there that I'm not sure that that was probably the best choice of words, but only those probably following this closely would

have noticed that little tidbit. Well, Catherine Lazardo, thanks as always for coming on and offering your time to us, your expertise. It's always fun. Thanks again for coming on. Thanks for having me again. And that's it for this edition of Law and Crime's Sidebar podcast. It is produced by Sam Goldberg and Michael Dininger. Bobby Zoki is our YouTube manager. Alyssa Fisher handles our bookings and Kiera Bronson does our social media for us and she does a great job. You can listen to Sidebar on Apple, Spotify, Google, and wherever else you get your podcast. And of course, you can watch it on Law and Crimes YouTube channel. I'm Janette Levy and we will see you next time.

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