The Johnny Depp vs. Amber Heard case and trial costs in the US – Settling at post-trial

In 2022, Johnny Depp filed a defamation/libel suit against Amber Heard and the Washington Post, when, after a lengthy trial, the jury awarded him compensatory and punitive damages in the sums of millions of dollars, for her allegations of suffering domestic abuse in an Op-Ed in that newspaper regarding the period she was married to that Hollywood Actor. Depp, an actor known from the Pirate of the Caribbeans series, and for his close contributions with the movie director Tim Burton, in movies such as Edward Scissorhands, The Fantastic Chocolate Factory, and Alice in the Wonderlands, lost several lucrative movie agreements, such as JK Rowling’s Fantastic Beasts, due to those allegations.

Recently, Ms. Heard announced that she settled with Mr. Depp and will not appeal the Virginia’s Trial Court verdict, in exchange for a reduction of the jury award to one million US dollars. Both parties have said they wish to move on with their lives and focus on their families and careers.

A trial in the US is divided into a pleading stage, when a party files an initial complaint and the defense an answer/counterclaim, and pretrial motions; a pretrial stage, which includes the discovery process, and the finding of facts; a trial stage, which includes jury selection, testimonies on behalf of the plaintiffs and testimonies on behalf of the defendant, and a post-trial when there are concluding arguments, the judge charges the jury, there is a jury deliberation, the  an announcement of judgment, and, eventually, motions for new trial or appeal.

It is important to highlight that the burden of proof for a defamation suit for public authorities (which naturally includes celebrities) is very high in the US. In this sense, one may prove, as set in the famous case New York Times Company vs. Sullivan (1964), not only that a party acted recklessly, or with intent when publishing such information, but that he or she knew that the information was false, and published it anyhow (the so-called “acted malice standard”). That gives great clout to Depp’s victory, who has recently presented his first film after those charges, in the role of French King Louis XIV, at the Cannes Film Festival.

Nevertheless, taking from that case alone, it is very interesting to observe that court costs in the US are very high and make parties go into settlements during all stages of a US trial, including in post-trial. Also, cases in the US are very public and parties who are public figures, and depend on the public opinion, will most likely want a settlement to have their records sealed. In this sense, it is interesting to observe that in 2021, when Hollywood actress, Scarlett Johansson, started litigation against Walt Disney Inc., for breach of contract and damages, due to her loss of revenue given that company’s decision to release her last Marvel's Black Widow installment directly to streaming, which made her lose dozen of millions of dollars in the box office, under their profit share agreement, such litigation ended in a settlement. Disney, which is a public-held company with stockholders, did not want to expand a lawsuit that would affect her market value. And Johansson did not want to pass the image as untrustworthy to other studios by carrying on with a litigation on a major studio.

In the Brazilian context, legal claims before the Judiciary generally take many years (or decades) before they can be enforced. The appellate system in Brazil can halt the enforcement of awards/judicial rulings for years/even decades, before all appeals and motions can be exhausted in higher courts of appeals, both on a federal level, the Federal Regional Courts (Tribunais Regionais Federais – TRFs) and, on a state level, the States Courts of Appeal (Tribunais de Justiça Estaduais – TJEs), the Court of Appeals for the Federal District and Territories (Tribunal de Justiça do Distrito Federal e dos TerritóriosTJDFT) as well as in the highest courts in the land: for non-constitutional matters, the Superior Court of Justice (Superior Tribunal de Justiça – STJ), and for constitutional matter, the Supreme Federal Court (Supremo Tribunal Federal – STF).

In the U.S. and in most EU Legal Systems, litigation funding has been used to secure a particular costly claim, such as a Class Action against a powerful economic agent, given all the burden of proof and litigation costs (since all the evidence is paid by the parties).  Although the cost of litigation weighs for the use of Litigation Funding/Third-Party Funding in Brazil, one can clearly perceive a more relevant factor, which is time for litigating in Brazil. The average time for a judicial claim to be solved in Brazil is 8 (eight) years, and although procedures may also be long in Northern Hemisphere – it takes between 24 to 30 months for a case, after discovery, to go through court in the U.S. state of California –, settling is highly encouraged given the costs of litigation (97% of all cases never go to Court, and are resolved in the Pretrial phase).

Procrastinating appeals might be highly beneficial in many situations, particularly when involving the government. This is not the case in the US given the trial costs, such as expert witnesses, forensics, and publicity involved. That is why is worth settling, even at a post-trial stage.


Olavo Caiuby Bernardes


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