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Celebrity Lawyer Shares Insight on Depp’s Defamation Trial

Depp and Heard at 2014 Premiere

[Source: Love & Order]

https://anchor.fm/loveandorder/episodes/Ep-3-Johnny-Depp-v–Amber-Heard-Truth–Justice-with-Christopher-Melcher-e1j44tl

Celebrity lawyer Christopher C. Melcher, who is ranked a best family law attorney in California, shares his expertise on the Johnny Depp vs Amber Heard Defamation Trial.

 

This podcast is for entertainment purposes only. The opinions expressed on this podcast are not legal advice that can be relied on. They’re based solely on the limited information provided. These opinions do not create any attorney-client relationship. Those seeking legal advice should contact an attorney in the appropriate jurisdiction and practice area.

I am so excited for our guest today on the pod. No stranger to the courtroom, top family law attorney Christopher C. Melcher has been an international family law attorney for almost 30 years. And before his stardom in the family law space, he has practiced criminal defense and civil personal injury litigation. Now, I won’t name names, but if you’ve been following me for a while, we’ve talked about Chris before, as he represents some of the most well-known people in Hollywood and the music industry, and his coverage of celebrity divorce cases is quickly shifting him into the spotlight as well. My video about this pod episode is at almost 500,000 views, and I just posted it yesterday. Chris, one follower, MishiG29 said, “I’m creating a Twitter just to follow him.” I don’t blame this follower, you are great on Twitter. You’re having a lot of fun on social media with this case, aren’t you?

Chris:        Well, thanks, Limor, for having me on. Yeah, Twitter’s been my thing. I’ve tried various platforms, and I got onto Twitter because there’s a lot of reporters on there and it’s just a way of basically communicating story ideas to them. With this Depp-Heard trial, the engagement is phenomenal.

I mean, it’s just so cool to see everyone get involved and want to know about the legal process and the laws that are involved. Because I love the law, and to have other people be interested in it and have an opportunity to explain things in just basic terms because the law is honestly not that complicated, and take that mystery out of it, I’m having a ton of fun. Honestly, not getting a whole lot of work done this month, but having a lot of fun with it.

Host:     Thank God we both have our own firm, so it’s a little bit easier for us. Everyone else catching up at night, they’re catching up with us. Social media has had such a big impact on this case. We have little private investigators, better than the ones we hire, all over this case, figuring stuff out, going to the courtroom to show them a makeup palette. What do you think the social media impact of this case has been?

Chris:        Well, it’s gigantic. I mean, I think anytime we support someone else, there’s power to that.

But then when you go one step further and spend your free time looking into the documents and the photographs and doing your own research and finding inconsistencies and seeing that Amber Heard has a bruise on one day in an exhibit, but then on the next day, you’re finding on the internet a picture of her with no bruise and sharing that, it is absolutely powerful. And I think it’s making a difference in this case. I got to imagine the lawyers for both sides are monitoring all this stuff.

We saw the same thing in #FreeBritney and that case, unfortunately had an abusive conservatorship which lasted for 13 years. They were taking her money and using it to plant media stories about how beneficial this conservatorship was.

It was only through the power of her movement and social media, just like we’re seeing now, going and spending their own money to find court documents and analyze them, post them, that broke the case open.

We can see this for celebs, of course, but we can also see it for high profile issues that don’t involve known people. So it’s extremely powerful. It’s here to stay.

What’s also interesting is that social media is taking over traditional media… It wasn’t that long ago that it was all about the traditional media and now traditional media, reporters and such- they’re going to my Twitter threads and building stories based on that.

It just totally blows my mind how that’s changed.

Host:        Yeah, it’s crazy. It’s crazy. A lot of people are confused about these expert witnesses in this case. There are multiple expert witnesses on both sides. We know that we have dueling witnesses all the time, right, but for a jury and for the audience at home, it seems to be a little bit confusing, I would say, right? Let me ask you this because I’ve spoken to a lot of other colleagues and we seem to be on the same page about this, Dr. Curry, a fan favorite, very credible, a lot of intel she provided to the jury and people at home about mental illness and mental disorders, she had a five-hour dinner at Johnny Depp’s house with his attorneys, with him. She called it an interview. Do we vet experts in this way knowing that they’re going to be before a jury? They knew they were going to take her deposition. She was going to be honest. She wasn’t going to say, “I didn’t go to dinner with them.” or “I didn’t have this interview.” Right? But does that take away any of her credibility in your eyes? It doesn’t for the audience at home, but based on the comments I’ve received, I don’t know about the jury, but she is a fan favorite. But what are your thoughts on that?

Chris:        Well, she’s incredible. I think just taking a step back on expert witnesses in general…

It’s been very frustrating for me as a lawyer dealing with experts in court because a lot of them are not experts. They take money to come in and express an opinion that they’re not qualified to do. They’re completely biased and unethical. Unfortunately, some judges buy it. And we’re seeing in our custody cases people losing their kids because somebody who claims to be an expert expressed an opinion against our client. So I have viciously gone after experts because of that.

And then every once in a while you see somebody like Dr. Curry, who knows exactly what they’re doing. So the experts that I retain, I’m very careful to protect them to make sure that they’re not going to be open to any criticism, and also, I’m looking for people who are honest. So just like I want their honest opinion, not the opinion that supports my client. The issue with Dr. Curry that got raised, and it’s the only ding that they found, was that, yeah, she went to interview with Depp’s attorneys, Depp was there, to see whether they’re going to hire her or not.

Now, ordinarily, that would happen in the expert’s office. But as she explained again today that her client is… She called him homebound. Because you got to imagine, if you’re that famous, and Johnny said this, he can’t even go out and get a cup of coffee without being a huge scene. The stuff that we take for granted, like we just go out and get our mail from the mailbox, this guy, if he did that, TMZ, paparazzi are going to be all over him. So it’s a very sheltered life, and because of that, she had to go to his place to do the interview, which makes perfect sense. And then she says, “Well, I got hungry because it was so long.” So they ordered some food, and they ate dinner together. That is totally fine. I think the Moscow Mule, again, no big deal. She really should have just not done that just to be careful.

When I’m having an expert like that, a forensic psychologist that’s going to be testifying this particular issue, I generally will shelter them from my client. I don’t want them to talk to my client at all because I want the information known to the jury and to the other expert and the other attorneys what my expert relied upon so that it could be tested, and saying like, “Hey, we looked at this data. People can come to different conclusions or not, but at least we know the data was relied upon.” If you’re having a meeting with one of the parties, that’s not really data that we can expose to the other side. Again, no big deal. They made a much bigger deal out of it because she is such a powerful witness. But again, a very slight lapse of judgment, I think, in having the Moscow Mule.        We had follower RTCRS ask, “Can an expert witness be biased? It would trip me up if I were on the jury. They are both calling their own witnesses. They are paid by each side. So of course, they’re going to speak in favor of whoever hired them.” You touched on that, the money, right? We know in family law, we know their names, we know who can be bought, right? We already know. But I was very impressed, like you said, Dr. Curry, listen, she was genuine about it. Yes, it was a five-hour dinner. Yes, it was at his house, but it was an interview. The same five-hour interview I would’ve had at the office. I didn’t even have enough room in my office to have them in there. So I was really, really impressed by that. We’ve both been on Court TV. Like you said, social media is where it starts, traditional media picks us up. I’ve seen you on Court TV, ABC News, and I think you’re one of the few attorneys who have said Johnny Depp has a very compelling case. Correct me if I’m wrong. I think that you’ve said that before.

Chris:        Yeah.

Host:        One user said, “Top three things done well and missteps by both teams in Chris’s opinion.”

Chris:        Sure. I struggled with this at the beginning of the trial because it’s Johnny’s case, and they eventually put Johnny on the stand, and it was a very rough start for his testimony. I know Johnny’s work through the movies, but I didn’t know anything about him personally. So I’m like, “Wow, his speech pattern is very slow, and he’s searching for words.” There’s a softball question from his attorney right at the beginning of the examination, “Mr. Depp, can you tell us why you’re here?” And you would think you’d have that one ready to go. “I am here because my former wife has lied about me and said vicious rumors about me, and I’m here to clear my name.”

Host:        Right.

Chris:        But it was a long rambling answer that I was like, “Wow, this was not going well.” Okay, so should they have coached him? Can you coach? Maybe he didn’t want to be coached is my guess. He wanted to come in as he is. So my guess is that’s part of it. My guess also is that when you have a celebrity client, you tend to treat them, unfortunately, sometimes different than the regular client. Now that’s been for me, I struggle against that. A regular client you would be like, “Wow, hey, man, get a haircut and you better get some good night’s sleep. And we’re going to work on this afterwards, and you’re going to have to speed this.” And I would just be brutally honest with the client.

Now, if the client is Johnny Depp, is his attorney really going to say that? So there’s a lot of variables going on.

But ultimately, he explained, and this is what’s so endearing about Johnny is he understands himself, and he just said,”Look, I’m not the guy in the movies. Those are lines that are written for me and I practice them, and I speak as fast as they tell me to, but this is me.” It was like, “Wow, he’s not acting, this is who he is because you wouldn’t act like he’s acting because it makes it sound like why is he struggling for these words? So it became much more natural to me, much more endearing when I heard him explain all those struggles.

But again, rough start. Took him a long time. And now he is much more comfortable, as we saw him today. So I think, again, that was one issue there.

I think on Amber’s side, I have a lot of criticisms there. Again, they’re probably suffering from the same problem. They have a difficult client, who isn’t going to be susceptible to any kind of criticism. Okay, so once you say that, now at least my mind would’ve opened up and listened to her and saying like, “Wow, okay, she’s admitting things that are against her interest. She must be about to tell me the truth about point two.” So I would’ve had her admit to that. That would’ve then taken a lot of the steam away from Dr. Curry because Dr. Curry said, “This is somebody who never takes responsibility.” Well, boom, first question, take responsibility. Oh, well, maybe Curry’s not right. I kind of like Amber now. I’m warming up to her because she’s admitted to fault. And then for her to say, “But Johnny did this to me,” man, it would’ve made such a big difference. But they either didn’t think about it or they couldn’t get her to do it.

Those are the big overarching things that I was thinking about, like if I were managing this trial, I would’ve interjected a little bit earlier I think than these attorneys may have been doing. We even saw that with Johnny. When he showed up, he had the hair out, and he looked pretty wild. Here’s a guy, they’re talking about his drug history, and he looks… I mean, he was pretty wild with that hair out. That lasted maybe the first week or something like that, and then it’s been in a ponytail ever since then.

Host:        Yeah, no, I’ve said the same thing. The way Johnny was in the courtroom at first, the appearance, we would never. The first thing clients ask us is, “How do I dress for court? What do I look like for court? What should I do?” Right? But I think enough people online and on television were talking about his appearance that first week and it changed up. And I absolutely agree with you about Amber coming in and just admitting to those things, admit to them. It is to me very, very clear that there was DV perpetrated by Amber Heard on Johnny Depp, based on the evidence that I have seen and heard. People like to say, “Are you pro Johnny or pro Amber?” I am anti-DV. However way you look at it, I am anti-DV. That’s where I stand.

Yeah, I don’t think Amber’s done herself any favors.

And on the other hand, we see Johnny Depp very open about his drug use that I think the other side was going to try to use against him, but he knew. He’s going to admit to it, his friends admitted to it, and they took the sting out of it from the other side. Nothing really happened with it anymore, right? Once you admit it, they can’t really do anything with it, there’s no movement.

Now, you were talking about the inconsistencies with Amber. You mentioned sometimes you see a photo with a bruise on her face, then a photo without a bruise on her face. What did you think about her on the stand when she gave her initial direct testimony? She said, “Bruise kit.” She said, “Bruise kit.” And then she tried to backtrack, “I call it my bruise kit,” when asked about the makeup. How did you feel in that moment, because when I heard that, oh my God, my heart skipped a beat for her? I was like, “Oh my God, why did you… Whoa, everything everyone has said is true.” And then I thought, “Wait a second, the jury’s not watching social media like us.” Right? They’re not watching it. It’s not a bench trial, it’s the jury. They’re not watching what we’re seeing. So what did that moment do for you? What was the impact of that moment for you watching at home as an attorney who knows how trial works?

Chris:        When I heard that, I thought, “Okay, well maybe she’s saying her version of a bruise kit is makeup that would conceal a bruise, not create one.” And that’s the thing, is that attorneys we can spin this. We can take any fact, and we could spin it. I don’t know if they even picked up on that or not to try to spin that back and recover. It was very quick. Now, people in the industry would know what a bruise kit is, but people on the jury here probably don’t have that background, I’m guessing, so they may not have caught it.

Yeah, the thing about trials is that a jury hears what the judge allows them to hear, it’s what’s admitted into evidence, and it is obviously a selection of the universe of facts and documents that exist.

There’s good reason for that, but it is frustrating for the public to know certain facts or believe we know certain facts and have the jury come out with the decision that we disagree with and then say, “wow, if they would’ve just known this, it would’ve been different.” I also got to think it’s difficult if you’re a juror and you went through that whole trial and you listen to the judge and you listened to the evidence and you made your decision, and then later on when you did your research, which you can do, and learned, “oh, wow, I didn’t know about all this stuff. Had I known about the jury judge tape-

Host:        Oh, man.

Chris:        … I would’ve completely came to a different decision.” I think that’s got to be frustrating. I think the answer, hopefully, for them would be is that the judge had a reason for not allowing it in, and we just have to trust the system.

But that’s the thing is about justice is that it’s not about the truth. It’s not about right or wrong. Unfortunately, it’s about what the judge or jury believes and on the information that’s presented.

That’s why trials are a theater. It’s supposed to be the search for the truth, but it’s really about us orchestrating what witnesses we’re going to bring in, the order of proof that we’re going to present this story, and how we’re going to do it, what we’re going to keep in, what we’re going to keep out. So you we’re hearing something that’s incomplete, but it’s the system we got.

Host:        Right. I tell people all the time, “Anti-DV, law and fact.” These investigators online, like you said, they’re crowdsourcing information, but if the jury doesn’t know, what do we care? I wish that people did what they’re doing with this case in wrongful conviction cases, right? If we could get the innocence project to get all these people to do some work for them online, we’d help a lot of people. But you’re right, we’re just working with a system that we have, and people are seeing that it’s kind of broken. And this is a defamation case, we’re not seeing all of the fun stuff. God forgive me, in criminal cases, it’s not fun, but it’s more entertaining to watch those cases. That’s why we have Law and Order not Civil Trials, right? They have all the criminal stuff going on.

I think people at home, we’re sitting here with our snacks, I’ve said this before, with our snacks, we can use the restroom one we want, we can make whatever facial expression we want, but this jury is sitting there for six weeks, all eyes on them. Could you imagine? I can’t. I feel for everyone in that courtroom. We have someone on Discord, listen to this username, Armadillo from the hotel. Do you know that reference?

Chris:        No.

Host:        Okay, so-

Chris:        Oh, yeah, yeah, from Kate Moss, yeah.

Host:        From Kate Moss– I made that reference on Court TV today for my Discord so they could know we’re connected, we’re becoming friends. This user said, “Why do people jump to conclusions on what they think will be the verdict so quickly on long trials instead of hearing all the evidence and everything else first?”

Chris:        Yeah, I mean, the thing is, it’s a fool’s errand to predict the outcome of a court case. The only thing that I found with any consistency is if I predict it’s going to happen, it probably is not going to happen. When I’m in court and I’m like, “I won this. There’s no way that the judge could rule against my client on this,” and then I get the ruling and it’s like, “Wow, how could another person have heard this evidence and come to a different conclusion? How is that even possible?”

Well, of course it’s possible because we’re not doing science. We’re not in a lab. We’re not doing math where it’s like two plus two is always four. Doesn’t matter where you’re doing it, who’s doing it, it’s four. But here it’s like, “Do you believe Johnny? Or do you believe Amber?” And it’s ultimately what this case comes down to because they can’t both be right; one is lying. Who do you believe? Well, that depends probably a lot on your biases. If you’re inclined to believe Johnny, you just identify with him, then everything he says is going to be believed. The negative things that are brought out on cross, like it was today, are going to be discounted and explained. “Well, maybe he didn’t send that text message. Of course, he didn’t understand this. The drug stuff, sure, that doesn’t matter.” See, we minimize, we excuse because that’s our favorite party.

And then for Amber, it’s like everything out there negative about her, we seize on, of course, because that validates our belief. But if we’re skewed towards Amber, we do the opposite. And so, really, all of this decision-making that’s happening in court is through the lens of bias.

And that’s why as an advocate, I’m looking at bias. That’s the first thing I’m doing when I’m planning a case is how is a judge going to be biased against my client? I have a man who says that he was a victim of domestic violence by a woman. I have to immediately think about the bias effect that exists in people to think like, “Well, how could that maybe happen or not happen?” And so, I have to address that. I have to identify and address it because if I can’t get rid of the bias, if I can’t identify it, I’m never going to convince anybody of anything.

Host:        Right. That is brilliant intel because I have found on my TikTok, and I think on your Twitter you do the same, we want to focus more on the other side, because if you are looking to see how can you win, there are certain elements you have to prove. How can you win? You have to look to the other side. And you’re completely right, I get called out sometimes when I present Amber’s side, right? But that’s what I want to show everyone because I already know you guys believe Johnny, I get it. And we all know that he’s a victim of DV. That’s not really what this is about. What is this person whose testimony won the UK trial for the Sun, who went in for a TRO? The judge believed her then, right? You and I know there’s no finding of DV with a TRO, but this person went in, presented at least reasonable proof, got a TRO. The judge in the UK believed her too. The ACLU made her the ambassador on what? Women’s rights, I think it was. So how could this person believe she wasn’t a victim of DV, right?

So I love presenting that evidence, but sometimes I get people telling me that I’m biased towards Amber, which is hilarious because I only know Amber Heard as the 20-something-year-old who married Johnny Depp and they had no prenup, so their relationship to me was always toxic because I cannot imagine someone like Johnny Depp not having a prenup, right? So it always looked toxic to me. But yes, we do it because that is the information you need to look at more critically than the information you have on your side to figure out what is going to happen. I think a lot of people don’t want to admit their biases, but I think you’re right on the money, it’s about validation, confirmation bias, all of those things.

So what do you think about the ACLU‘s involvement in all of this and having Amber write this article and their testimony and Amber saying, “Donation. Pledge. Pledge. Donation.”? What do you make of that whole aspect of this case?

Chris:        Well, I mean, they look horrible. They look absolutely horrible. It’s an organization who says it stands for rights of other people, protecting other people, protecting civil liberties. Well, what is one of the greatest civil liberties that we have in a democracy? It’s due process, the right to notice, meaning time, to respond to charges and opportunity, meaning the ability to bring in evidence, hire an attorney, and make arguments to the court before a decision is made. This ambassador, their ambassador, had violated Johnny’s rights to due process by running into court, what I think is on false evidence, really no notice or opportunity when the guy is in Spain, when he doesn’t want anything to do with her, when he never threatened to cut her off, he was no risk to her, running into court and saying, “I need a restraining order against him.” And then everything else that’s happened afterwards.

Why pick her? What due diligence did they do to investigate this, to say, “Well, what was going on in that relationship? Maybe Johnny did all these things that she claims, but what did she do?” Why didn’t they talk to Johnny? Why didn’t they check her story out? Obviously, like you mentioned, she is convincing, and she’s an accomplished liar. Maybe people like the fame a little bit that was associated with her, but something about her, she’s effective of infecting people. And so, she gets in there and she influences them. She’s very good at that. So she fooled the ACLU and then backed it up with this promise or expectation of getting millions of dollars.

So there are some broken people over there, just like in a lot of places. I’m actually happy that they’re being scrutinized because they absolutely deserve it. But then when you look at the children’s hospital, the other charity that was supposed to get the three and a half million dollars that was pledged to them, sick children cheated out of the money that would’ve been used for their care. They are without blame. I’m glad that the children’s hospital director was brought in to testify that, “Yeah, we got 250 grand. 100 really came from Johnny.” And so, she cheated sick children.

Host:        An accomplished liar. An accomplished liar. That is such an interesting phrase, and I think that it rings true with her. I think that it rings true with her. On Discord, we have VV94 who said, “Does Amber posing for TMZ to photograph the bruise prove malice?”

Chris:        Yeah. Well, okay, there is a piece of that I’m going to hit. Okay, so what we’re talking about here is May 27th 2016, she goes in for a restraining order. She goes into the Los Angeles Superior Court, and she chooses to exit from the most public entrance/exit of that courthouse, where the media go when they want to photograph somebody. TMZ is tipped off. We heard that from the employee from TMZ testified today. So we know that TMZ’s there, they know they’ve been tipped off, probably, I think, by Amber. Amber denies that, “No, didn’t tip anybody off. I didn’t want the media there. I was surprised when I walked out the door and saw the media there, that’s complete nonsense.”

If you look at that courthouse, it’s 111 North Hill Street in Los Angeles, and you can Google it, it’s an entire city block. There are four entrances, north, south, east, and west, plus an underground entrance that’s secure. If she would’ve contacted the Sheriff’s department, and her attorney’s very experienced handling cases like this, knows how to get in and out of that courthouse without being detected.

She instead chose the most public way, where TMZ was known to be there because I think she called them or her publicist most likely called them. And so, she was definitely looking for the media attention. Now, to get to the bias thing, she’s got this bruise or apparent bruise on her face. She’s photographed with that. She knows that it’s going to be distributed widely now that she’s the victim not only just of… I mean, this is a physical assault that allegedly happened to her to cause that bruise by Johnny Depp, that she wants that to go to the world. And then the same thing with the videotape of him that she illegally recorded and then leaked to TMZ a couple of months later.

To me, how that gets to this whole bias thing…

To prove defamation against a public figure, you have to show that a false statement was made against that public figure with actual malice, which is an intent to harm or a reckless disregard for the truth. So, how do we prove intent to harm? Well, we look at their conduct. And somebody who’s going to fake a bruise, who’s going to call the media, wants to get photographed in international news to make sure that her husband is falsely accused, embarrassed of this, loses opportunities, gets a legally recorded video and leaks that to the press, to me that shows a state of mind to harm Johnny Depp in 2016. And the jury could infer from that two years later when she does her op-ed that she still has that hateful state of mind.

Host:        Oh, that’s very interesting. So they can look to 2016, which I think started this whole defamation fiasco, you can infer from what happened in 2016 that there’s actual malice still and now related to the statements made in the Washington Post 2018 article?

Chris:        Yeah. The thing is that there’s certain times in law when you have to prove what’s called state of mind, and mostly this comes up in criminal cases.

So you have a crime that’s committed and the prosecutor needs to prove not only that the act occurred but it was also done with a certain state of mind. That makes it willful and could make it a crime or not a crime or certain levels of crime that could be charged based on the state of mind. So how do you prove what’s in somebody’s mind? Well, certainly if somebody says, “Yeah, I was super angry at this person when I did this,” well, then, you have an admission. Most time, they’re not going to say that, so you have to do it inferentially. You have to take other facts and circumstances and put that together in saying, “Well, that shows the state of mind.”

Amber Heard, she hasn’t said, “I hate this guy.” That would’ve been a good question, actually, for them to develop from her. But she hasn’t made an admission that she had this hateful state of mind in 2018 when she wrote the op-ed, so all we can do is look at these other facts and circumstances and how has she treated him. Well, I mean, you listen to the tapes, I mean, I guess that’s the best evidence. I mean, the way that she spoke to him during the relationship was hateful. And so, is that really episodic or symbolic of the situation that she was in at that moment in time, or would that state of mind carry over even after the relationship ended?

We know as divorce attorneys that people generally don’t think better of their spouse when they’re going through a divorce or have gone through a divorce than when they were married. They typically get even more angrier afterwards. So again, common sense, put some facts together, and we’re just doing logic here. And that’s what needs to happen in closing argument, they need to tie this sea of evidence together and take all this and put it together and make connections in a very logical way in saying, “Hey, jury, here are the facts. You could string all these together to come to your conclusion.”

Host:        Yeah, you’re spot on. State of mind, so Amber, she didn’t say, “I hate him,” in fact, I think she said, “I’ll always have love for him.” Right? But Johnny Depp seems like he hates her. We don’t blame him. But there’s a counterclaim. There’s a counterclaim in this action. When I look at the statements that Amber made in the Washington Post article and I compare them to the statements made by Adam Waldman, the attorney, what in the world was he doing making these statements online? Only God knows. I don’t get it. I’ll get your opinion in a second. But we have Johnny Depp, not a fan of Amber. Amber’s still a fan of Johnny it seems, or she wants to make us believe that and probably because of that state of mind issue. What do you think when you compare their claims and the amount of damages? 50 million on Johnny’s side, but 100 million on Amber’s side, right? We know they’re arbitrary, but I would think 300 million for Johnny, three million for Amber. Those are the numbers that make sense to me, but let me get your opinion on those things.

Chris:        Yeah, it’s a great point because Johnny clearly does not like her. He won’t look at her. There was an email that came out today from 2016 after he was facing all this restraining order stuff, he was very angry, and he’s saying, “I want to go after her.” And so that is direct evidence of his state of mind and could be used certainly by the jury on her counterclaim because she needs to prove that he acted with actual malice in having his attorney make statements about her. So that could come back.

But the thing is, again, maybe because I am biased towards Johnny, but being truthful. He’s not pretending. I mean, just think about it, he went through all of this horrific experience having false allegations made against him publicly. It’s hurt him. It’s hurt his family. It’s hurt his career. It’s been years in litigation over this. And if they ask Johnny, “How do you feel about Amber?” “Oh, well, I love her, she’s such a wonderful person.” Well, we would know, “That’s a lie. You’re not being honest with us at all.” So to me, it’s like, “Oh, I despise this person.” Now, okay, well, how did you feel about her in 2020 when your attorney was making statements? He’d probably say, “Yeah, I hated her then too.”

So sometimes telling the truth, I mean, it’s always the good idea, but telling the truth will set you free. So yes, telling the truth that I have malice against her in 2020 definitely admits the malice element that she needs to prove. But his honesty on that question could then make the jury believe him on the other parts of the claim that would be denied.

Host:        Right. You said, “The truth will set you free.” Johnny Depp has made a big point, he said it in the very beginning of his case-in-chief, he said it again today, he just wants the truth out. He feels better now that the truth is out. And remember, we practice family law, this is a civil defamation case, it’s kind of turned into a family law case, but I always tell my clients, “It’s better to take control of these things yourself, keep it out of court, let’s see if we can figure it out.” In this case, Johnny Depp has said, “I don’t care if I win or lose, but we’re having a six-week trial.” All of these resources, this time, this energy. He didn’t fight the TRO. Sometimes clients have their reasons for that. Again, they didn’t have a prenup, so anyway, he could just settle that case, I would understand it too. He didn’t really need the protection against her either because he’s always traveling or whatever it is. Do you think that it’s right to have taken this case to trial but not sue for breach of contract, that NDA, contempt, right? I think those would have, in my opinion, been far more successful, but I don’t think he would’ve had this broadcast to the whole world for six weeks in this way, right?

He’s trying to make a big point out of this. And I think that it’s gone his way, he’s winning in the court of public opinion. But is that fair to the court system? We have clients who we fight for months to get a 20-minute hearing in court, right? Sometimes we get there, we get it bumped and continued. If you’re there and you’re last on the docket, or if the court is taking you last in their lineup, you might get bumped to the next day. But six weeks reserved for him just for him to say, “I don’t care if I win or lose, I’m trying to really make a point.” We understand that, we get it, but could he have done this with an interview with Oprah, maybe, same impact?

Chris:        Yeah, at first, when this trial started, I was like, “I don’t know if this is a great idea,” especially when the negative info was coming out and the messages that he sent. I was just like, “Wow, was this a good choice?” But I absolutely think it was now that I’ve seen this much of the trial because he’s won already in the court of opinion.

Host:        Yes.

Chris:        Whatever this jury comes out to, he’s won. There’s no way that the folks that are on Justice for Johnny Depp are going to think anything different of him based on the outcome of this trial.

He needed the court process to extract evidence and statements from Amber. So had he just done the Oprah interview, one-sided piece that Amber’s PR team would’ve immediately came back and said, “Well, you didn’t talk to us. We have a lot to say. He’s lying. Look at the UK thing,” or whatever else they want to show. It’s different. Here, it’s a court of law. We have people compelled to come in and testify, documents, experts, the whole nine yards. And so, he is using that to clear his name. Of course, it would be great if he has a finding that she lied about him.

And then just to hit the other point about why didn’t he challenge it at the beginning, I questioned that too. I saw him in his earlier testimony express regret for not having challenged it in 2016 when she went in for the restraining order. He said he was advised to settle. And of course, he was. Every divorce lawyer that’s honest would tell him, “Hey, get this thing settled. Don’t fight. You’re going to spend a lot of money. It’s going to get worse. It’s going to get more public. Buy your peace.” And he made a deal with her in two months time, which in family law, this is like a nanosecond.

Host:        My God, it’s fast.

Chris:        To settle a case this complex with no prenup, with all these crazy allegations. He settled in two months. They settled in two months. They did the right thing. They followed what we would tell them to do, and he’s paid a lot of money to buy his peace. And that’s where it should have ended, but it didn’t because I don’t think she was done abusing him. She felt that she wanted to do something with her name and leverage this into victimhood. I don’t blame him for settling. I don’t blame him for fighting it now.

In terms of court resources, yeah, I wonder that all the time. It’s a huge investment for the State of Virginia to do this, but as we talked at the beginning of the show, benefits to the legal system in general. Engagement about the legal system with the public is extremely important for everyone to know this is our court system, these are our rules of evidence, this is how things work. Because any one of us, unfortunately, could find ourselves there at any time. And the more that we know about our rights, it’s helpful. And also the more we know about how our courts operate and if things aren’t going well, maybe to affect change. So I think it’s a good investment by Virginia into allowing, I mean, now international attention on our justice system.

Host:        I love that. No, I completely agree with you. You’re right, something like an interview would’ve never done this. Never, ever. You’re right. It just would’ve been the PR war that has been happening in the background, right? But social media has taken over that PR war, I think.

Do you think that Johnny Depp will be hired in Hollywood again, no matter the outcome? I think, like you said, the outcome I’m not sure would really matter in this case as far as getting an audience to watch his films, but I do wonder, he seems very litigious and people stay away from people who are litigious. When you’re talking about big money, big studio, Hollywood money, you see everyone from everywhere on earth being subpoenaed in this case, and they’re not liking it, right? They’ve filed motions to squash. They’ve tried to file for protective orders, right? Do you think that Hollywood would be ready and willing to hire Johnny Depp again after this case, no matter the outcome?

Chris:        Oh, yeah, absolutely. He’s extraordinarily talented and he is extraordinarily popular and the most talked about celebrity right now. And so, on merit, he should be put into these films because he’s a great actor, but Hollywood has no track record of hiring decent people. They hire people based on who they think they can bank and make money off of. That’s one of the reasons why we had MeToo, is because they tolerated the most horrible people out there, I mean, they’re just terrible, terrible humans, because they made money and they enabled these people and covered for these people. None of that stuff’s changed. Now, of course, Disney is Disney, so they’re got the whole family thing going on, but there’s distribution channels that they could use for him.

I think that he may not want to work with them. He may feel slighted by them and that they didn’t support him, and he may go somewhere else. So I think he has no problem at all doing whatever he wants to do, and with a clear name, I think, at this point. It’s Amber Heard that… Again, I’m really upset at how… I think she’s a liar. I think she’s lied. I think she’s done everything that Johnny has said and that we all believe. But she’s a person with a personality disorder, according to Dr. Curry, and deserves respect and empathy just like the rest of us do. She is destroyed, and she has destroyed herself. I don’t know where she goes. I mean, she becomes an oddity, honestly, in society at this point and may have some value as an oddity. Again, she has herself to blame for it, but still, we’re talking to another person here.

Host:        You’re so right. Let me ask you this question because a lot of people want to know, and it goes to us saying or you saying that Amber is a liar. I think that everyone believes Johnny’s testimony. I think he comes off very genuine. I’m dying to see him in another film. I watched the direct examination of Johnny Depp in this case-in-chief, and I was waiting there like, “Oh, I can’t wait for his next movie.” He’s so captivating. He is so captivating. I think you have it right about Hollywood too, but listen to this question, Chris. MorganBarry2, and people, they’re dying to know this answer. I’ve answered it in episode one, but I want to have your input, “Did Camille set it up well enough for Amber to purger herself when she says, ‘So it’s your testimony under oath,’ like when she did while questioning the pictures of Amber and asking if they’re the exact same picture just edited?”

Now, MorganBarry2 seems to be referencing what we call impeachment, when you’re impeaching a witness on the stand.

I think that people are confused about the definition of impeachment, but you have them repeat what they said a few times, you reference a different moment in time when they said something differently, you show them that testimony, the evidence, that’s impeachment. I think that’s what they’re referencing. But people want to know, perjury, has Amber heard perjured herself, and what can we do about that if so.

Chris:        Perjury is lying under oath. She’s under oath when she testifies, whether she’s reminded of it or not. I know a lot of attorneys like to remind, “You’re under oath,” whatever, but they’re under oath the whole time they’re testifying. If they make a false statement that’s knowingly false, yeah, that’s perjury and it’s a crime. Could they be prosecuted? Yes. Have we ever seen anybody prosecuted? Extraordinarily rare. Perjury, unfortunately, happens pretty much a lot of times when people take the witness stand in a case. There’s a lot of times there’s one person lying and one person telling mostly true things. And so, I don’t see a lot of appetite for perjury prosecutions. I see zero chance of a perjury prosecution coming out of this. The problem is, first of all, the proving of falsity of the statement. So even if she loses doesn’t mean that she lied. There’s a difference there.

Host:        Right.

Chris:        And so, even if they can prove particular statements that she made under oath were false, again, we get to a state of mind because perjury is a specific intent crime, you have to show that Amber knew that the statement was false when she made it and that she’s stating it for the purpose to deceive. So she has to have that state of mind rather than an innocent mistake, “Oh, I thought that photo was taken on this date or not.” So look, none of that’s happening.

Maybe in Australia, and I have a detailed threat on that on Twitter about the Australian dog incident in 2015, don’t mess around in Australia. They already filed charges against her. She pled guilty to passing a false document. And they’re looking at her again for suborning perjury. And if you look at my threat, I lay the whole case out for them right there.  I’m more hopeful for the Australian government to go after her for perjury than anything in any court case because we just don’t see that.

Host:        Right. Right. Right. Okay, we have TaniaRobles5… Now, I’ll say this before we get to this question, a lot of opinions on these attorneys, a lot of opinions on the attorneys on both sides. I like to remind everyone, both sides are doing their jobs. Both sides, I believe, are doing a wonderful job. They have to take on certain personalities on direct and certain personalities on cross examination, and we’ve seen it switch. But, like you said, Chris, earlier, the validation bias, the confirmation bias, when people are speaking negatively about the attorneys on Amber’s side, I know that’s what’s going on, right, because Johnny’s attorneys take the same attitudes on during cross examination as they should. That is what they’re supposed to do on cross examination. We see it all the time. We’re used to it. But people don’t see that on his side, and it’s laughable to me. I want to make them see it, but what can you do? So TaniaRobles5 says, “Was the judge allowed to tell Elaine how to lay a foundation with her question?”

Chris:        Yeah, so judges can do pretty much whatever they want to do. They can’t go so extreme where they’re showing favoritism into one side in front of the jury. That could be a problem, could taint the jury because the jury might think like, “Wow, this side must be right because the judge is showing such favoritism.” But no, I mean, I think there is just more of an act of humanity. It’s not easy. I think the more that you’re in court and the more training, importantly, that you have, you understand how to ask these questions to lay a foundation. It’s actually quite simple. It’s mechanical, formulaic, and if you drill it like we do in trial advocacy classes, you just do it 20 times, and then you practice every once in a while, you have it down.

But unfortunately, a lot of attorneys don’t go to trial a lot, so they don’t have that background, they never got the training. And then also, look, I mean, six weeks, they’re there in court, eight hours a day, they have the stresses of the trial, they’re trying to do the best for their clients, they’re listening to all this evidence, things are changing game plans going off the rails because some new document or fact came in. We got their clients maybe yelling at them or being disappointed. We have all the other pressures going on in their regular life and trying to sleep and avoid everything else that’s going on out there. And then, of course, you’re going to mess up some stuff.

It does go back exactly like you said, the bias. If you imagine Camille Vasquez as Amber Heard’s lawyer and if she did the exact same job but she was representing Amber Heard, would everyone like her as much? No.

Host:        Never. Great point. Great point. Chickenfriedriceand beans… Sometimes I think people are changing their usernames on TikTok when they’re leaving us questions because they know I’ll read them, but Chickenfriedriceand beans says, “We understand the legal side, thanks to TikTok, but the jury isn’t trained to understand. Will that play in anyone’s favor?”

Chris:        Understand what? The facts or the…

Host:        I think they mean the law. We know that juries, they get the law written out for them and they can ask questions about the elements. We’ve said they can’t do any outside research. They can’t use a dictionary for certain things, right? So I think that’s what they’re saying. We understand the elements and the law, but it hasn’t really been presented to them, rig

Chris:        Okay, so I learned this from my Dad, who was a prosecutor, and he taught me a lot of good stuff, but basically, when you get these jury instructions, so if you’re on a jury at the end of the trial, the judge just starts reading off, I don’t know how they do it in Virginia, but in California just read like a hundred pages of law. And it’s stuff that you and I learned in law school, and we took a whole class on and thought about, talked about, was like, “What are you saying?” And then it’s finally, “Oh, I get it. I get it.” But it took a long time.

So here you have people with no legal education. The judge is reading laws to them that they’ll have to apply to the case and then say, “Go in and deliberate.” Well, that doesn’t work. So what my dad said is he would do, back in the old days, blow ups of these instructions, and he would boil it down to very understandable language and saying, “You heard this instruction, this is what it means. This is how it applies in this case.” Just like we talked about state of mind-

Host:        Right.

Chris:        … that you have to this fancy word, actual malice. This is what it means: a hateful state of mind or acting without any regard to whether your statement is true or false. Here’s some examples of what that is. And then talking about direct and circumstantial evidence. Direct evidence is things that the witness observed or that we can see that we know for a fact because they’re in the document. But then there’s other things like inferences that we take from the circumstances, and that’s why we call it circumstantial evidence. A classic example a trial lawyer will use is like if we wanted to prove that it rained last night. Well, if you were up last night and you saw it raining, like it never does in LA, you would know, direct evidence, it rained. But if you were sleeping and you woke up the next day and the street was wet and if you had a newspaper and it was in its plastic bag and your dog was out there wet and everything like that, you would know that it rained, even though you didn’t observe it, and that’s circumstantial evidence. That’s an inference. That’s logically created based on the facts that you’re given.

So you have to, as a teacher of law, go and take those instructions and break them down, because, otherwise, you’re sending the jury in with a mountain of facts and this incomprehensible jury instructions in the law, of course, they’re going to come out with a bad decision. So that’s on the lawyers.

Host:        That’s on the lawyers, that’s exactly right. AaronMac82, “When there’s an objection, whose time is docked? Is time also docked for sidebars? Thank you, I love your videos.” Thank you, AaronMac82. So Chris, the objections, whose time is docked? Sidebar, whose time is docked?

Host:        Yeah, I was wondering about that too. I do not think that the court could possibly count because she’s using some like chess… I’m no good with that. I would do it once and then an hour later I would forget hit the button. I’d be like, “Oh, crap.” And she got a law clerk helping her with it. Okay, but easy enough to say, “Okay, you’re beginning the direct examination of Johnny Depp.” That’s the Johnny Depp time. Hit the start button. Fine. But every time they say objection, hearsay, and it takes a half a second, there’s no way you’re on the clock off the clock for objection, hearsay. So I don’t think that matters. I think, though, potentially I could see a sidebar because that’s an event that’s maybe taken a few minutes that you could start and stop the clock. But honestly, I do not know how the judge is running that one.

Host:        Yeah, my guess was, case-in-chief, you’re case-in-chief, rebuttal, now we know there’s a sur rebuttal or Amber’s counterclaim rebuttal. There’s so much going on. Yeah, who knows how they’re doing the time. The judge does tell us at the end of almost each day, I think, but that system… Maybe we’ll find out one day. My last question for you, Chris, this is a good one, Cowduckgirl, “What each team should prioritize in closing?”

Chris:        The prioritization is really getting back to what the case is about. Today we heard Kate Moss and the stairs. We heard Ellen Barkin…

Host:        The girlfriend from the nineties.

Chris:        She was seen outside of the Harvey Weinstein trials too. She was seen in the line waiting to go in and watch the Harvey Weinstein trials, yeah, I think so too.

Host:        We’ve heard what I call noise. There’s information that’s, yeah, it’s relevant because it got in there, but does it really add a whole lot of anything? I think at this point the jury might not even remember like, “What is this? What are we talking about?”

One of the points in closing is to then you got to land the plane. We are up there at 30,000 feet, we’ve seen all this stuff, now it’s time to land the plane. You got to make the points, and they got to count. The point is not Amber being a horrible person. That’s not what we’re trying to prove here if we’re on Johnny’s side. We’re trying to prove that her statement in the op-ed was false and about him and with actual malice. So they’ve got a laser focus and only talk about the things that hit those three elements. And then damage is number four.

So that’s what has to happen for both sides.

And then Amber’s side, particularly on her defense, is to saying, “Hey, you may think my client,” and I’ve sometimes done this with my own clients like, “You may think my client is an awful human being, and there’s plenty of evidence to support that.” So now maybe the jury’s coming with me now, because if they don’t like Amber, they maybe don’t like me because I’m Amber’s lawyer, so I got to build some rapport, because remember, the lawyers have never got to talk to the jury really except for maybe some jury selection stuff, so now there’s an opportunity to create support. “I understand you may think my client’s an awful human being, and I would understand why you think that way, but that’s not what this case is about. This case is about whether that statement was false. And you’ve heard evidence that Johnny Depp has done abusive things towards Amber Heard. And this statement by her says she was in an abusive relationship. Therefore, it’s true, and it can’t be defamatory.”

I mean, what did that take, one minute? In that one minute, I just created rapport with the jury. I’ve told them what the case is not about, which we’ve heard 90% of the evidence of, and told them what it is about, and then I completely destroyed his case in one minute. But they got to do something like that. But if it’s just rambling, disorganized thing, they’re going to lose the jury and they’re going to be like, “I’ve been here for six weeks. I want to get down to business, and you’re not giving me the goods, so I’m going to switch off.”

Host:        Totally. I’m totally with you. And I lied, Chris, I lied, I have two more questions for you if that’s okay.

Chris:        Yeah. Sure.

Host:        My first one, fans in the courtroom and Johnny’s… It’s a compound question. It’s a compound question, but we’re going to let it roll. And Johnny’s indirect interaction with the fans and the things he’s doing at counsel table, where he puts his head up, his head down, he’s doing all these things, which we know our clients would never get away with ever, ever. He has the whole courtroom on his side, basically, outside of Amber’s counsel table, right? Do you think that’s going to have an impact on the jury, and is it fair?

Chris:        Sure. The jury, we don’t get to see them because they’re protected, but that jury box is right off the side to Johnny Depp’s counsel table. They can absolutely see when he’s joking around, when he’s passing notes, when they’re smirking with counsel. You just don’t know what a jury’s going to think about that. They may understand why he’s laughing at that moment and may agree with him. Or they may be like, “Wow.” Like we heard today, Amber Heard smirking when we’re hearing some evidence or testimony that normally you’d think like, “Wow, you wouldn’t really laugh if you’re hearing somebody say that about you.” So the thing is about facial expressions is that we can misread them very easily. And it’s very hard. Again, people were very hard on Amber, and I was myself initially, because she’s sitting there stone-faced for three weeks or a couple weeks, and I’m like, “Wow, she looks really mean because she’s just stone-faced.”

But she is following the rules; you’re not supposed to make expressions. So if you follow the rules, you’re stone-faced and you look unemotional or maybe even mean. If you don’t follow the rules and you make facial expressions, then at least you’re humanized yourself or relatable, but people may not like what they saw.

So there’s no way that you can win or lose this thing, really. I mean, you just got to be yourself. Now, in terms of how the jury uses that information, it’s not technically in evidence, their facial expressions, but the jury may use that. The observations of courtroom demeanor of the parties, whether they’re on the stand testifying or not, can be used. We had one case where there was a personal injury case, and the person said they had a knee injury. The client was at counsel table and used his foot to push the chair over and lost that trial.

In jury interviews, one juror said, “That person could not have made that movement with that knee injury.” So you have to be extremely careful. You don’t know what a jury’s going to do, but, hey, this trial’s gone on long enough. I mean, I like that Johnny’s joking around and trying to lighten it up a little bit, but I think Amber had a harder time with that. She’s a little bit of a harder personality where when she does smile, it looks menacing almost. And again, maybe that’s the evidence of my Amber bias.

Host:        And finally, Chris, your opinion on what should happen and what might happen, any opinion that you want to share about how you think the jury is going to decide on both the counterclaim and the initial claim and what you think actually should happen.

Chris:        Well, this is so hard, like I said-

Host:        So hard.

Chris:        … it’s foolish to try and predict what a jury’s going to do. We know it has to be unanimous in Virginia, so it’s seven jurors that have to come to an unanimous decision. In California and civil trial, it’s nine out of 12, or in a criminal, it’s 12 out of 12. So getting seven humans to agree on something, that’s going to be a challenge. But let’s say they do agree. Some of the things that have been rattling around in my head is they may say, basically, “Everybody get lost.” They may say, “You people deserve each other. You married each other after dating knowing both of you where in whatever. Whatever you say about each other before you married each other, you knew, and you own this. You’re sitting there taking drugs,” because we don’t know how people view about that stuff. Maybe you’re cooler with the drug use. Maybe you’re not so cool with the drug use. Maybe you’re not so cool with the language that was used by both parties. So you could see a jury saying, “Both of you, get lost.” Again, it’s very weird, and I’ve done enough trials now and I’ve seen it where they could also come back and say, “Yes, she lied. Damage is a dollar.”

Host:        That’s right.

Chris:        What I think is clear is she has not established her claim at all against Johnny, so I think that’s a goner. I don’t think that thing has any chance of surviving.

Now, wait, I should have made the prediction because now it’s going to come [inaudible] like, “No way that’s happening.” But I think she’s completely failed in her $100 million claim and the statements that were made about her. I don’t think that that’s happening. And it’s really Johnny’s claim. If I were on the jury, based on the evidence that I heard right now, I would vote for him, and that would be my verdict. But I’m not on the jury, and so it’s up to seven people to debate this and come with a decision that they can all agree to, which is, by definition, a consensus, because it’s not going to be what one person wants, it’s going to be what seven can agree on.

Host:        I can’t tell if it’s going to be a quick decision if they start before the weekend, right? Because they don’t want to be there after Memorial weekend, I’m sure. Or if they’re going to take their sweet time. Who really knows? Chris, where can everyone find you on Twitter, what’s your handle?

Chris:        Sure. It’s CA_Divorce is where you can find me on Twitter. I’m having fun over there. Probably going to take a break after this trial and we’ll figure out the next one to follow. But having fun over there and hope that we can connect up and share ideas because that’s what I’m trying to do. It’s not just broadcasting information, I learn from other people on social media who know more about this case than I do, or just have great observations. And it’s like, “Wow, I never saw it from that perspective.” That’s why I’m there.

Host:        I love it, absolutely. It’s a great community, and I’m so, so thankful and honored that you joined us on Love & Order. Thank you so much, Chris.

This podcast is for entertainment purposes only. The opinions expressed on this podcast are not legal advice that can be relied on. They’re based solely on the limited information provided. These opinions do not create any attorney-client relationship. Those seeking legal advice should contact an attorney in the appropriate jurisdiction and practice area.