This episode of the UTLRadio Podcast aired on May 23, 2022. If you haven't done so already, make sure that you subscribe to the Understanding the Law Radio, (UTLRadio) Podcast, available wherever you listen to your podcasts.
PODCAST TRANSCRIPT (AI Generated)
Peter J. Lamont, Esq (00:10):
Well, hi, thanks for joining me for another episode of understanding the law radio. I'm your host, Peter Lamont. Today. We're going to be talking about something that everyone has probably heard about, and I'm talking about the Johnny Depp, Amber Heard defamation trial. Now we are going to take a different approach to this case. I'm going to weed through all of it, to get to the heart of what this case is about. And I'm gonna condense it down into something that everybody understands, because the reason I'm doing this, I have seen so much conflicting, confused, uh, commentary in the last few weeks about this case. I've rarely seen a case where people are in general, so confused and not understanding what the ultimate issue is. And that is likely because of the sensationalism of the case, the fact that these are, uh, actors and the fact that the media is focusing on certain things over the other.
Peter J. Lamont, Esq (01:25):
And of course they want ratings. And so that's why they do it. But this is a defamation case, a civil lawsuit. Now over the weekend, I overheard some conversations because it seems like, uh, aside from monkey PS, uh, this is all people are talking about. And, uh, and I say that facetiously, um, but what I Heard is people asking each other questions. Do you think that Amber Heard will go to jail? Do you think that Johnny Depp will be found guilty? And you know, I didn't wanna butt into people's conversations, but it, it made me start thinking about how people don't really understand what's going on from a legal perspective. So let's take this step by step. I am going to give you the briefest of overviews concerning this case, because if you look at the actual history of this case, it goes on for days.
Peter J. Lamont, Esq (02:28):
Uh, it, it's just really a very complicated matter, but just to break it down. And by the way, if you're interested in reading a full timeline, there's a good, um, article on Vox, which I'll link in the description of the, of the podcast. And you can click on, it gives you kind of a, a play by play of what's gone on, uh, historically with these two, but I'm gonna just par it down to the most simplest of explanations. This is a situation where Johnny Depp, who everybody knows, right? I mean, I remember him back from 21 jump street and of course, uh, you know, perhaps arguably one of his most notable roles, uh, no, not Edward scissor hands, but pirates of the Caribbean. Uh, it, it was so popular that it compelled Disney world and Disney land to change the iconic pirates of the Caribbean ride.
Peter J. Lamont, Esq (03:30):
Um, and, and make it a Johnny Depp inspired ride he's seen throughout the, the ride multiple times. All right. So, all right. Johnny Depp, big star big, uh, action hero, um, interesting fellow. And he ultimately marries Amber herd, young actress, who I think her biggest role to date was in the DC Aquaman film, where she was, can't remember the name of the character, but, uh, queen of Atlantis or the undersea, or I don't know somebody that, that hung out with Jason. Mamoa not, not quite sure. I saw that movie a while ago. I don't remember the details. Well, DE's career starts to slow for a variety of reasons, and he ultimately gets together with her. They get married and it doesn't go very well. There's all kinds of issues that you can read. Like I said, in that V article. Um, but ultimately they get divorced and Amber herd, uh, says in an interview that she was abused, but she doesn't come out and say it that way.
Peter J. Lamont, Esq (04:49):
She talks about being a victim, um, them, um, of, of domestic abuse, um, that she had to, uh, to, to deal with. And while she never mentions Johnny Depp's name directly, it is implied. And during the course of this defamation case, um, and, and even the one that was brought in, in the UK, it's essentially been accepted that herd's comments concerning domestic abuse really are focused around Johnny Depp. So, okay. So we get that outta the way. So we believe that she's speaking about Johnny de the court believes that she's speaking about Johnny de despite the fact that she hasn't said it. So now she makes these allegations of, um, domestic abuse de goes back at her and says, never happened. And they squabble. And as a result of this Deb's career starts to tank even harder. So I think there was going to be a reboot of the pirates of the Caribbean.
Peter J. Lamont, Esq (06:02):
It's either a reboot or yet again, another sequel, um, and Disney decides to go in a different direction and they drop him likely because of the negative publicity that this allegation about sexual, uh, assault or deme domestic abuse has had. So ultimately we get to this point where Depp files a defamation lawsuit against Heard, and as part of the case, which is normal, she files a counterclaim against him. Okay. So it is Johnny Depp as the plaintiff, and then suing, Heard she answers the complaint, denies the allegations, and then sues him in a counterclaim. Okay. Now, where are people going wrong? What's gone on here that people are asking questions about, will Amber herd go to jail or will Johnny Depp be found guilty? I think the issue is that when you hear the testimony and you, you read the reporting about what's been said at the trial, people are looking at the specifics of the details and thinking that this is a criminal case, this is not a criminal case.
Peter J. Lamont, Esq (07:31):
This is a civil matter. And it is about one thing, and that is defamation. So we now need to look at what is defamation, so that we have a better understanding of what we're talking about here. And I'm gonna give you the New Jersey definition, um, just because I'm, I'm well versed in it, but in New Jersey, in order to prove a defamation case, you have to show four things and here they are. Number one, a false statement about the plaintiff. Number two, communication of that statement to a third party. Number three fault of the defendant amounting to at least negligence and number four damages suffered by the plaintiff. These elements. Now I'm talking about New Jersey, but these elements are nearly identical to every other state in the United States. These are basically the elements of defamation. You need to prove those four things, false statement about the plaintiff communication to a third party fault of the defendant at mounting to at least negligence and then damages suffered by the plaintiff.
In order to prove a case for defamation, the plaintiff must provide the following elements: (1) a false statement about the plaintiff; (2)communication of that statement to a third party; (3) fault of the defendant amounting to at least negligence; and (4) damages suffered by the plaintiff.
Peter J. Lamont, Esq (08:43):
So let's look at Johnny Depp and his allegations. Well, he's saying that herd made false statements about him concerning the domestic abuse. So, number one, do we have a false statement about Johnny Depp as the plaintiff? Well, yes, allegedly. He says she made false statements. Okay. So there we have have element number one, element, number two, communication to a third party. Clearly we have that because it was part of an op-ed that that Heard gave, and everybody read it. Not, not everybody, but a lot of people read it. So you've got the second prong, third prong fault of the defendant mounting to at least negligence. Now, do we have this yet? Well, we don't know. I'll tell you why in a second, let's move on to the fourth prong damages. Did Johnny Depp suffer damages? Well, allegedly, yes. Allegedly he lost work as a result of these alleged, um, false accusations.
Peter J. Lamont, Esq (09:52):
So we have three of the four prongs lined up. We're missing that third prong fault of the defendant amounting, at least to negligence. Now, what does that mean? Well, it means that Heard has to be telling the truth. Why is that important? Well, one of the defenses and arguably the greatest, and maybe even the only real defense to a negligent negligence, uh, or I'm sorry, defamation claim is that the defendant, the one that is alleged to have made the false statements is actually telling the truth. Truth is the ultimate defense to defamation. So on this third prong, what if Heard is telling the truth, then we don't have all four prongs and then death's case fails.
Peter J. Lamont, Esq (10:58):
Okay. Now what, well, why are we hearing about all of these details about their relationship and the things that they've said to each other and the horrible things that they've done to each other, and why are we seeing pictures of abuse and hearing testimony from makeup artists and, and things like that, why what's going on here that makes people think that this is more of a criminal case? Well, it's because a plaintiff in a defamation case bears the burden of proof. What does that mean? Well, in, in nonlegal terms, it just means that they have to prove their case. It's their obligation to prove the allegations. It's not on the defendant to prove the case. It's not on the defendant to necessarily disprove the case in a civil lawsuit. The plaintiff bears the burden of proof. Now, what do I mean about the fact that it's not on the defendant to disprove it? Well, obviously in the herd case, she's trying to say that her statements were true, which would in essence, disprove the allegations by de, but let's just go far field for a second and say that Deb makes these allegations and can't provide one shred of evidence. Then technically herd would have to do nothing because the burden is on him.
Peter J. Lamont, Esq (12:45):
Does that make sense? He has to prove that defamation occurred. She doesn't have to do anything. Now, like I said before, of course, she's fighting this, disputing this and saying, no, you know, my statements are, are true. So how have we come to where we are right now, where dirty LA is being aired and, and everybody's listening to the intimate details of their, their relationship together. Well, it's because de needs to prove that he did not assault her and in doing so, he's arguing that not only did he not assault her, but she assaulted him.
Peter J. Lamont, Esq (13:39):
And so that's where the details of the relationship come into play. That's why we're seeing this testimony. Now he's saying it didn't happen. He's saying that she abused him. And he's saying that, you know, look at her picture, uh, the day after an alleged incident, right? She says, oh, you know, I was hit by Johnny de on X date. And the next day she's at some sort of movie premiere. He says, look, there's, there's nothing there. I mean, that that's supports the fact that I'm telling the truth. So he's trying to prove his case. And he's using evidence like photographs to say, look, it didn't happen. If it had happened, she would've looked differently. Right? She, there would've been visible cuts or bruises or scarring or whatnot. And so Heard in an effort to counter, right? Remember it's his burden to prove it. So in, in order to counter that statement, which in theory, he's saying to a jury, look, there's no evidence of injury.
Peter J. Lamont, Esq (14:47):
Well, that helps him with his burden. That helps him meet his burden because he would be submitting that to a jury who would look at this and say, Hey, yeah, he's right, right. That, that would be how he would prove his case or at least a facet of it. So now Heard is coming back and saying, wait a minute, I, I, I was bruised. Let's take testimony of my makeup artist, who knew that I was bruised and injured, who had to apply makeup to cover up the injuries. And now that has arguably invalidated that argument or at least cast out in the juror's mind. So this back and forth, and this explanation about these, these sorted private details, this isn't a criminal case. Nobody's going to jail. Nobody is going to be convicted of a crime, and nobody's going to be found guilty. This is a purely civil matter.
Peter J. Lamont, Esq (15:50):
If these two were not celebrities, nobody would hear about this case because defamation cases are filed all the time, all the time. And nobody hears about it. This happens to be one of those sexy cases. If you will. One of those celebrity cases where people are interested simply because who is involved and we, as people love to watch an accident, it's like those, those that's saying, you know, there's an accident and you just a train wreck and you just can't turn away that sort of thing. Um, but that's what we're looking at here. That's what this is.
Peter J. Lamont, Esq (16:35):
So when you hear people tell you that, oh, this is, this is horrible. You know, is, is he gonna be, uh, you know, able to, to get her, uh, to go to jail? Or is, is she gonna be determined to be guilty or is Johnny gonna be, don't listen to any of that, cuz that's not what's going on here. And now, you know, a little bit more, but I wanna give you even even more. Okay. I wanna talk for a second about what is this burden of proof that I'm talking about? So if you remember whether it's something that you watched on TV or you lived through, like I did the OJ Simpson trial, okay. One of the most famous celebrity, uh, criminal trials, arguably to date now that is different than Johnny Depp because that was a criminal trial and the burden of proof is different in a criminal case than it is from a civil case. In a criminal case, the prosecutor representing the state has to prove their burden, but their burden, which I'm gonna get to in a minute is different.
Peter J. Lamont, Esq (18:02):
In a civil case, the burden of proof is this preponderance of the evidence. That's what the burden is. Preponderance of the evidence is basically an evidentiary standard used in a civil case for the burden of proof analysis. And under the standard, the burden of proof is met when the party convinces the fact finder, the jury that there's greater than 50% chance, that the claim is true. That is the burden of proof in a civil case, the preponderance of the evidence is the standard. And all the plaintiff has to do is convince the jury who are the fact finders that there's greater than 50% chance that the claim is true. So going to, to Johnny for a minute, if he convinces a jury, that it's true.
Peter J. Lamont, Esq (19:10):
And, and 50% of, of what he says is like, yeah, you know, we, we look at what Johnny's saying here and yeah, it's true. We think it's true. We, we don't think it's all true, but it's at least 50% true. Well then he's proven his case. Now I, I should just clarify. It's greater than 50%. So 51% chance that Johnny's telling me the truth. Then I am able to say that he's met his legal burden. Now going back to OJ, what is the difference in the burden of proof? Well, reasonable doubt. That's the burden, that's the legal definition of the burden. And that essentially is sufficient doubt on the part of the jurors based on a lack of evidence. So beyond a reasonable doubt is a much different standard than the preponderance of the evidence. When Johnny Cochran stood up in front of the courtroom in front of the jury and said, if the glove don't fit, you must have quit.
Peter J. Lamont, Esq (20:22):
He's saying to them that look, I'm showing you that the glove doesn't fit. That's at least gotta cast some reasonable doubt in your minds that maybe OJ didn't do it. And so despite the fact that the glove shrunk, the glove was wet, the glove had blood on it. Whatever, you know, you wanna argue the point is, is that Cochran used that theatric as a way to say to a jury, there's not proof here. You know, you've gotta be able to hit that burden in a criminal case of beyond a reasonable doubt. Well, I just created reasonable doubt in your mind because it just showed you this glove that doesn't fit. However, in a civil case, it's like we said, the preponderance of the evidence standard. And if I can show 51% that my argument might be true, boom, got it. Okay. So significantly different standard, significantly different burden of proof, totally different than a criminal case.
Peter J. Lamont, Esq (21:38):
So now you can tell your friends the next time you see them, maybe over Memorial day weekend, that you have a better handle on this Johnny depth situation than they do because now, you know that a, not a criminal case B nobody's gonna be found guilty, cuz you can only be found guilty in a criminal case. In a civil case, you can be, you can be held liable, not guilty and see, you know, the burden of proof and you can explain it to them. You are going to be the talk of the barbecue this Memorial day weekend, because you will have figured out the Johnny Depp case. And you can talk about it in a, an intelligent and reasonable manner. So TMZ and all the other news outlets that are focusing on, oh, you know, Johnny Depp, he, he, he, you know, went to Tortuga with a bruise on his face that was not caused by black beard.
Peter J. Lamont, Esq (22:45):
The pirate. Now you're gonna be able to cut through this. So just in a quick summary, let's just go over what we talked about. We talked about the fact that defamation is a civil matter and that the Johnny Depp trial only deals with alleged false statements. We talked about the elements of defamation. You have to hit all four of them. We talked about the fact that it is a plaintiff's burden of proof in a civil case. And in this case, it's Johnny Depp's burden. Now just as a quick aside, when you file a counterclaim, you have the burden of proof on that counterclaim because when you're in the counterclaim, you've, you've actually stepped into the role of the plaintiff. So in herd's counterclaim, she has the burden of proof. Okay. So it's just a reversal of roles. And then finally we talked about the, the legal standard for burden of proof in a civil versus criminal case, preponderance of the evidence.
Peter J. Lamont, Esq (23:51):
So hopefully that cracks through some of the mysterious outer shell of what this Johnny Depp Amber Heard case is really about. I'm not gonna say it's not an interesting case. It is. And, and obviously we love to see celebrities, you know, entwined in complicated legal battles where dirty laundry is aired. It it's just, you know, entertaining, which is why entertainment sources like TMZ and others focus on cases like this. And they don't focus on cases that are, are not so glamorous or appealing, even if it is the same exact issue. As a matter of fact. And we'll talk about it in another episode, a very similar situation is occurring right now with the MyPillow founder. Lall, it's, it's a defamation case on his part, but how many of us have, have really, really Heard about the MyPillow defamation lawsuit versus Johnny Depp? I would venture to say, very few of us have Heard about the MyPillow, cuz it just doesn't have that same appeal.
Peter J. Lamont, Esq (25:08):
Johnny Depp draws an audience. And so that's why it's so important. So the next time you see a sign that says free Johnny Justice for Johnny lock up Amber, any of those type things you are going to know, you're gonna laugh. And you're gonna say, now I know now I know what this case is about. And I know that the person with the sign has no idea what's going on and you're gonna feel, feel good about yourself for having this knowledge. All right, well, that's gonna do it. Um, obviously this is a little bit different of an episode and I hope that it wasn't too boring. I wanted to really hammer home, um, the legal information in this episode so that you understand it just because it gets frustrating to hear people misinterpret what's going on. And I didn't want our listeners to be in that same boat.
Peter J. Lamont, Esq (26:05):
I wanted our listeners to have a better understanding of what's going on so that, that, you know what you're watching, you know what you're seeing it, it makes this more enjoyable when you know what's going on versus just being, you know, let around by the nose, listening to what other people are saying and half the time it's wrong. So hopefully this helps. And hopefully this was an, an interesting episode. If you like episodes like this, please, you know, send me a message.
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FULL PODCAST EPISODE: https://www.pjlesq.com/podcast/episode/2176d2f3/what-is-the-johnny-depp-and-amber-heard-defamation-lawsuit-really-about-or-the-legal-facts-about-the-dollar50-million-dollar-battle
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As with any legal issue, it is important that you obtain competent legal counsel before making any decisions about how to respond to a subpoena or whether to challenge one - even if you believe that compliance is not required. Because each situation is different, it may be impossible for this article to address all issues raised by every situation encountered in responding to a subpoena. The information below can give you guidance regarding some common issues related to subpoenas, but you should consult with an attorney before taking any actions (or refraining from acts) based on these suggestions. Separately, this post will focus on New Jersey law. If you receive a subpoena in a state other than New Jersey you should immediately seek the advice of an attorney in your state as certain rules differ in other states.