Law&Crime Sidebar - What Happens If Amber Heard Appeals?

Episode Date: June 8, 2022

After Amber Heard lost to Johnny Depp in the defamation case seen around the world, the question becomes: can she win on appeal? From trial publicity to potential improper rulings we discuss it all. Jesse Weber sits down with Appellate and Litigation attorney Matthew Barhoma to analyze the likelihood Heard could get these verdicts thrown out, or even, Depp's damages award reduced.READ FULL TRIAL RECAPS: lawandcrime.comSUBSCRIBE TO OUR OTHER PODCASTS:Court JunkieThey Walk Among AmericaCoptales and CocktailsSpeaking 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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I have to live with the trauma and the damage done to me. This is horrible. This is painful, and this is humiliating for any human being to go through. Welcome to Sidebar, everybody presented by Law and Crime. This is where we recap the biggest moments in the day's biggest cases. I'm Jesse Weber. So many questions are coming out in the aftermath of the Johnny Depp versus Amber Heard defamation trial, where Johnny Depp basically won his entire case against his ex-wife, Amber Heard.

The jury found her liable for defamation for three statements that she made in the Washington Post op ed piece that she penned. And she only won on one of her counterclaims against debt for defamation regarding a statement made by Depp's attorney Adam Waldman. The jury awarded Depp $15 million in damages, but that amount was actually reduced by law to $10,350,000. The jury awarded her, $2 million. Just to be clear, just to set the record straight, this is a major. major loss for Amber Hurd. There's really no spinning this. But now the question that we keep getting on the network, that we keep getting, whenever, even on social media, is what about the appeal? What happens next? You know, her attorney, Elaine Brett Oroft, made a little bit of the

media tour and she said, she publicly said that Amber Heard is going to appeal. So let's talk about the likelihood of success of an appeal for Amber Heard. And joining me right now is one of my favorite guests on the Long Crime Network who can help answer this. He is an appellate and litigation attorney Matthew Barahoma joins us. Matthew, it's good to see you. Good to see you, Jesse. Always a pleasure. Thank you. So walk this through generally speaking how successful an appeal is because my understanding is it is not very successful to get a successful appeal. Yeah, no, it's hard. Actually, you know, any appellate, anyone who's actually appealing a case, they come to the appellate court with a pretty high bar, okay?

Amber Heard is not going to have an easy pathway here to an appeal. But there could be some things that if she uses to her advantage that could help her, could sway in her favor. But it's generally a very difficult thing to do. Well, the number one thing that we keep seeing come up whenever you read articles, oh, what's going to happen with Amber Heard's appeal? And Elaine Breedhoff mentioned this was the jury biased, right? Was the jury tainted at all? This has been a common tactic.

We even saw it come up in the Scott Peterson's case. This massive media attention to this case was undeniable, right? But isn't it a little speculative to say at this point that, of course, the jury was tainted by everything that was happening outside the courthouse, all of the social media pressure and online accounts that were against Amber Hurd? So this argument for an appeal that the jury was tainted because of all of the media exposure and what was happening outside the courthouse, what do you make? of that. I, listen, I empathize with Amber when it comes to this, right? There was a lot of that. Now, the only problem is we forget that the jury sometimes are human beings, right? We instruct them, you know, don't, don't read the media, don't talk about this with friends, don't do any of this, but ultimately, if they opened up Instagram or any social outlet like TikTok or anything

like that, they were inevitably going to see exactly the social media parade that all of us we're seeing. So it's very difficult for us to say that, you know, they were totally unbiased, that they totally didn't, you know, receive this information and they saw everything in court. But not only that, I watched a lot of this trial, okay? I was glued to the TV, just like everyone else. And a lot of times when I'd watch the trial, I'd feel one way. But then when I'd go on Instagram or I'd go on social media somewhere, I'd be seeing the same information translated a little differently, right? And it almost could change the way that you feel about it. right you saw it there and the jury saw it in person and then they subsequently saw another

reverb of it that may be read off a little differently so there is some inherent possible bias is it so clear is it so apparent that an appellate court's going to take on jury issues i doubt it jury issues are amongst the even highest issue most difficult issues uh to bring about um on appeal so um i wouldn't say it's totally you know gone but it's difficult It's funny you mentioned that. I saw that online, social media. I even listened to other podcasts about what was happening in the trial. And I was amazed at how much misinformation there was. So many people misinterpreted what was happening in that courtroom. And they were making their own facts. They were making their own theories. And they were getting the whole case wrong. And I thought the more and more that goes out, it was dangerous. And, you know, because we're covering the trial every day. So it alarmed me. But wouldn't you have to have the jurors interviewed? Wouldn't you have to know precisely? if they were looking at social media. You can't just guess. You can't just say, oh, this was a big trial.

They must have been biased, successful appeal. Don't you have to sit down and interview the jurors? Yeah, you really do. But even then, even then, and you reference even the Scott Peterson case, something happened there where one of the jurors gave some information after the fact, right? Same thing here. And even that, with the way that our evidentiary code is set up in America and how it is in most, in most states, especially Virginia, right?

what you're going to get is you're going to get a lot of bar to anything that the jury has to say after the fact they're going to bar any kind of statement after the fact because we look to achieve finality to some extent. So even if something was to come about, even that statement alone may not be sufficient to bring down this kind of verdict from the appellate court. But if you had a juror who came forward and said, yeah, I was watching law and crime every day and listening to their analysts. And that Matthew Barhoma really convinced me one way. I would absolutely take it to the bank. I would pounce on that.

It would be very relevant, right? It'd be a relevant piece of the discussion. Let me ask you this. It's the very fact of the judge having cameras in the courtroom, which is sometimes unique. You know, sometimes it can be a controversial decision with this kind of case. Can that decision by the judge? And I think we have to be clear, when you're talking about an appeal, you're talking about legal errors, legal mistakes that were made during the trial court. could an appellate court and say, I disagree with the judge's decision to allow court to allow

cameras there? Okay. So that's a very big factor. And I've been reading about this online. A lot people are saying she's going to go to the appellate court based on that. If that's the case, listen, I've brought media attention to my own cases before, okay? And the press makes, you know, essentially a request with the court and the court grants it or not.

There is an aid factor checklist, you know, that the court has to go through. But in a case where there's public interest, almost always, a judge is not going to be reviewed on appeal. If they made a decision, a judgment call that cameras could be in the courtroom here, you didn't just have one celebrity, you had two celebrities. Not only that, the case has been in the media for years already leading up to this trial, right? So I don't think a court, as an appellate court, is going to second guess a court's opinion to bring in, you know, some of the cameras. But does it walk a fine line, especially with these jurors? Absolutely. Because anyone could argue, but for these cameras, maybe there wouldn't be this kind of social media presence.

And maybe we would have had a more straightforward proceeding in this case, right? By the way, I agree with you because the UK trial with Johnny Depp. suing the publisher of the Sun. I don't think a lot of people were following it. I mean, put it this way. There were people following it, but they weren't following it like this. And that partly was the reason there were no cameras there. Yeah, absolutely.

I mean, you also made every witness a celebrity, right? Every witness got their moment of fame almost. And there was so much that went into what their testimony looked like after they took the stand. And without the cameras, none of that would have been apparent in this case. So another big issue that it seems her side is going to be pressing on appeal was that there was, and this is again from Elaine Reddoroff when she, I think she said this on the today's show, that there was evidence that was suppressed, that they wanted to get in, that wasn't allowed in, something to do with Amber Hurd's medical records. They said that there was evidence that was allowed

in the UK trial that wasn't allowed in this case. What's your thoughts on that aspect of being a successful appeal that the judge didn't allow certain evidence in? Yeah, you know, I heard the same statements. I watched that same segment. And my, you know, my appellate brain was going off. That's exactly what she's hitting on. It's evidentiary issue. So far, from everything I've seen in this case, from everything I've reviewed, that seems to be the strongest arguments that she has. And even that is going to be a difficult argument. I'll explain to you why. So they're basically alluding that there is evidence that should have been submitted to this jury, but this jury didn't get an opportunity to see it because the judge denied it ever coming into evidence.

Right. And they're going to claim that that evidence was very relevant and it was an abusive discretion. That's the standard. It was abusive judicial discretion not to bring it in. That's the standard. And those are the key words. Why? Because judicial discretion is a very high bar for appellate courts, especially when it comes to evidentiary issues, right? The judge is at first hand, right? They get to observe. They get to hear each side make their argument about every piece of evidence firsthand. So a lot of appellate courts are weary to overstep on that because that judge had the best position to make that judgment call. And even if that judgment call didn't seem like it was the best, a lot of times it'll be termed harmless error because they were the best person most suited to be able to make it. Now, there was a really important piece of information that that was a text message from Johnny admitting that he had kicked her, feeling best. feeling bad that he had kicked Amber, right? And that wasn't allowed in. And if they do bring that up on appeal,

I don't think they're going to be successful because they tried to bring it in when he was on rebuttal and he was on the stand. They tried to bring it in. They tried to get him to talk about it. He wouldn't. They try to introduce it and sidebar once again. They couldn't.

So from my perception, this court went through every logical step and made a judgment call. And that judgment call on appeal, I don't think is going to be overturned. Real quick, Matthew, wouldn't it have to be, well, if this evidence was introduced, then it would have led to a different result with the jury, a different verdict. And I'm of the opinion, they were inundated with a lot of information. And let me tell you a lot of information on Amber Heardt's side.

They had corroborating witnesses. They had photos. They had the infamous kitchen video of him, you know, just throwing cabinet, hitting cabinets, kicking things. And it makes me wonder, even if that evidence was allowed in, would it have changed the verdict, would have changed the jury's decision? Am I thinking about the appeal the right way here? Absolutely. Actually, that's exactly what I think is going to be cited in an opinion if they bring up this issue, which is that the appellate's court's going to say there was a barrage of other incidents. There was a handful of other instances that this jury could have picked out.

Adding this one in is not going to be the item that absolutely sways this, completely changes the outcome. and having a substantially different kind of outcome is a, it's a relative factor when you're looking at every piece of judicial, you know, misconduct, not misconduct, but abusive discretion. Let's do a catch-all here, Matthew. What about everything else you can appeal? Like, in terms of the jury instructions, the verdict form, you make objections during the course of witness testimony, you make objections on the record, you gather this whole record of objections and things that you think are problematic and improper ruling.

by the judge. Anything there in this catch-all kind, I don't know I'm kind of simplifying it, but anything there that might benefit Amber Heard in an appeal? You know, I'm going to say yeah, and you know what it is? In trial, it feels a lot like the jungle, right? You got this jury, you got the judge, you got attorneys on both sides arguing, you got people in the gallery, you have the clients themselves. These are high net worth clients. You got the cameras. You have a lot going on. On appeal, there is none of that, okay? There is no jury. There is none of it. There's not one judge, but three judges. It's a very black and white legalized process. And if anything Amber Hurd has going in her favor, it's the fact that this is going to be in front of three judges

and it's going to focus only on the legal issues. If you're complaining that Johnny Depp was a bigger star, outstarred you, right, swayed the jury, swayed the general public opinion, well, on appeal, all of that is taken out, right? You're in a very legalized process. So if there is a catch-all, I would say the best thing that's going on in her favor is if she brings all those arguments, they're going to be reviewed on a strictly legal standard. It's not going to have the same kind of salacious details or cameras in an appellate court as we saw in the trial court. You know, we talk about the appeal. And when we talk about it, it's if she can get a successful appeal and the you know the the verdicts thrown out and maybe get a new

trial what about appealing just the monetary judgment what about just appealing the damages award walk me through how she might be able to get that amount reduced because we did actually a prior podcast about whether or actually even be able to pay out the 10.35 million yeah yeah well you know speaking on paying out this court might even require her to have a bond to post a bond to appeal meaning she has to show some kind of wealth to just be able to move forward. But if I was Johnny Depp, I'd be arguing that she would need to post a bond. She needs to prove that she could pay this judgment if she wants to appeal this case. And what it would be, it'd be a percentage of the overall judgment.

So if the overall judgment is $10,350,000, it could be 30%, 40%. She has to post that in a bond. Then money sits in an escrow-like function while the appeal is pending. so that we could preserve some money to make sure that we can make the plaintiff whole if all items were affirmed. So it's a safeguard. It's a procedural safeguard in place. But can the appellate court review only the damages portion? So not focus on all the issues, but focus on the outcome. To some extent, yeah, and the system has already taken its course on that. Because Johnny was originally awarded 15 million, and immediately the judge revised it to 350,000

because there was a cap in Virginia's statute, so on punitives. So, you know, the court has already gone in on punitives where they have the most discretion because punitive damages are just intended to punish you. The compensatory damages, the appellate court could look into it, so they could look at the 10 million to see if it was possible. They could do something called remitator or additor. remitted or would basically remit might bring down the amount at it or they might add more to it they might think that he wasn't he didn't receive enough this jury didn't give him enough they could do that it's rare and the reason is judges like finalities in jury verdicts where a jury reached the finding effect let me ask you this one of the things that we've been talking about as well i actually think this might be a really good idea for johnny death is to waive collection of the money award to say hey let's Listen, Amber, I'm not going to collect this from you, all right?

The $10 million wasn't important to me. It was about clearing my name. It was about getting my reputation back, hopefully getting my career back. Here's what I'm going to do. I am going to waive the right to collect this monetary award, this monetary judgment. You, in exchange, don't appeal this. Do not fight this anymore. And we'll move on from that.

Is that something that could happen and do you see it as a possibility? You know, I would love to see it happen. The reason is Johnny's done a lot of character building in this case, right? He's brought in a lot of items that deal with his character. And one thing that he loved to bring out to boast about was that he paid all communal, you know, divorce taxes. He paid her the $7 million and the divorce. He took care of everything when he didn't even need to, right? So it would be nice to see him waive this judgment and tell her not to appeal it.

That would be right in line with the character that he had drew out in trial. So it might be a very good outcome to a case like this. Unless, of course, imagine he collects the money and then donates it to the ACLU and he donates it to the Children's Hospital of Los Angeles, the very charities that she was supposed to donate the divorce settlement money to. But having said that, I don't think he's going to donate money to the ACLU, considering they were instrumental in writing the Washington Post op-ed. So, Matthew, before we sign you off, I want to ask you one more question about this appeal, the process, how much time this is going to take. I imagine it could go all the way up to the Virginia Supreme Court. Could it eventually make its way to the United States Supreme Court? And how long would this process take?

It would be unlikely that it makes it to the Supreme Court of the United States of America, though it could if it had fundamental First Amendment issues that really dealt with the Constitution. This is generally a state thing. Now, with that being said, can it take a long time? Generally, yeah, people, what you're reading out there is right, right? the appellate process is quite slow okay there's a number of things that have to take place number one is they have to produce the entire record okay so that's going to take the longest time producing the entire record for all the parties to be able to review and do all that and then the appellant so if that's going to be amber hurt if she's the one who's appealing she's going to have to file her

opening brief johnny's going to get one reply at it's the response brief and then she's going to get to respond to that and then each side's going to have their day in court maybe 15 20 minute oral argument. Maybe in a case like this, it'll be extended to 45, and then you'll get an opinion. So that could take, that entire process there could take about a year, maybe two, but in a case this high profile, you never know. They might step on it and not allow any, any extensions. One of the things that, by the way, I just love as a side note when we talk about legal cases, and this is something from law school, is when we say, well, Johnny Depp is going to file, or Johnny Depp will argue, or Amber Heard is going to respond.

It's never them. It's their attorneys, but we just say because they are the parties in this case. But could you imagine Johnny Depp gets in front of the Virginia Supreme Court and argues a case against Dan Burrard? I always found that so funny when we say that. Just to everybody, no, no, it's not actually them. It's their attorneys and legal team who are going to do it. So Matthew Barhoma, this was fantastic.

Thank you so much for clearing up this issue for us. I think we all have a great understanding of what to expect in the appeals process. Let everybody know where they can find you. You can find me at Barhoma Law. that's my main firm. There's also another firm that I'm a partner in. It's a new injury firm called Power Trial Lawyers. And actually, that's where you could see all my interviews. There's a press tab and you can find all the information that I do online there. And you can listen and watch Matthew Barhoma on the Long Crime Network. Matthew, thank you so much.

Appreciate it. Thank you, Jesse. Always a pleasure. So everybody, please support Sidebar. If you like what we're doing here, please subscribe on Apple podcast, Spotify, YouTube, or wherever you get your podcasts. I'm Jesse Weber. We'll speak to you next time.