Johnny Depp case is a contest of credibility

Sunira Chaudhri

Sunira Chaudhri

Toronto Employment Lawyer

Depp is suing Heard for $50 million in defamation damages following a 2018 op-ed she penned in The Washington Post. In that piece, Heard wrote in part that she was a “public figure representing domestic abuse” and that “I had the rare vantage point of seeing, in real-time, how institutions protect men accused of abuse.”

Final arguments in the Johnny Depp trial have been made and the seven-person jury has been sequestered to deliberate and deliver the verdict.

 

Depp is suing Heard for $50 million in defamation damages following a 2018 op-ed she penned in The Washington Post. In that piece, Heard wrote in part that she was a “public figure representing domestic abuse” and that “I had the rare vantage point of seeing, in real-time, how institutions protect men accused of abuse.”

 

Heard is countersuing Depp for $100 million in damages.

 

A big, if not most significant part of the jury’s job now is to assess the credibility of the parties. The jury must determine who is telling the truth, or perhaps more acutely, who knowingly told untruths about the other.

 

A general principle in assessing credibility can be found in the 1951 case Farina v. Chorny. If a trial judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box.

 

This assessment is highly apropos given the parties in this case.

 

The jury won’t simply weigh the oral evidence of the parties themselves but the testimony of all witnesses, emails, text messages, contracts, new articles, and, of course, the Washington Post op-ed that ignited this court case.

 

A lot of the evidence presented in the case challenges the intentions of both Depp and Heard, branding each of them as operating with ulterior motives and sometimes motivated by greed, fame or revenge.

 

For example, in text messages from Depp, at least one of which in 2016 vowed to take down Amber Heard: “She’s begging for total global humiliation … She’s gonna get it.”

 

On the other side, Depp’s legal team placed into question Heard’s intentions with respect to the release of her op-ed.

 

Upon her divorce from Depp in 2016, Heard pledged to donate half the settlement ($3.5 million) to the American Civil Liberties Union (ACLU). At trial, the General Counsel for the ACLU, Terence Dougherty, confirmed Heard was credited with donating only $1.3 million and that she, her PR team and the ACLU worked on the op-ed together, and that the timing of the op-ed release was to align with the premiere of the Aquaman movie in which she starred. Many drafts of the article were written and Dougherty confirmed Heard sought to reinsert statements about her marriage to Depp that ultimately were not contained in the final published draft.

 

The evidence shows Heard did not write this op-ed curled up on her couch with a cup of tea, but rather it was a sophisticated PR exercise. It wasn’t a missive from the heart; it was calculated; it was timed; it was motivated by a whole host of intentions not just with the pure intention of shining light on domestic or gender based violence.

 

Intentions matter. We are about to see how complicated motives impact the outcome of this case.

 

On to this week’s questions:

 

Q. I have been given working notice of my termination. I understand that my employer gets credit for giving me notice of my termination before my last day but I can’t look for other work since I’m so busy at my current job! Does this matter?

 

A. There is caselaw to support that all working notice periods are not created equal. If your current role has you working full time or overtime, or if the circumstances around the termination have been particularly difficult a court may not reasonably expect you to look for work during your working notice. Get some legal advice to discuss your particular situation.

 

Q. I have been working for my employer for 5 years. I never got an employment agreement and was offered my job by a two liner email that laid out my salary and 3 week vacation every year. Now my employer wants me to sign a long agreement. I don’t understand a lot of it but what stands out to me is that it says they can lay me off or change my role if they need to. Do I need to sign?

 

A. I advise every employee to get a new contract reviewed by a lawyer before you sign if you can. You can also talk to your employer about clauses in the contract that you don’t understand and ask for an explanation. You can also ask what, if anything will happen if you don’t feel comfortable signing. If the terms of this contract materially change the relationship you have with your employer you may not be required to agree to the terms at all.

 

Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.

 

The content of this article is general information only and is not legal advice.

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