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Depp is trying to prove to a jury that the actress defamed him in an op-ed she penned for the Washington Post that alleged she was the victim of domestic and emotional abuse without specifically naming the “Pirates of the Caribbean” star, 58.
Depp’s case is no layup for his legal team, according to a leading entertainment attorney.
Daniel Gutenplan, who has represented clients on both sides of high-profile defamation cases, contends Depp still has an “uphill battle” to win his case and secure the $50 million judgment he is seeking.
‘Defamation plaintiffs’ have ‘an uphill battle’
“As most defamation plaintiffs have, Depp and his team have an uphill battle and have a challenge in proving the case because they have to prove, first of all, that anything that was said [in the op-ed and Heard’s testimony] is completely false,” the media, entertainment and IP attorney told Fox News Digital.
“The Washington Post piece in question, of course, doesn’t mention Mr. Depp by name, although, his camp will argue — and I think it’s a compelling argument — that a reasonable reader will assume that the article was written about Mr. Depp. But of course, it doesn’t just not mention him. It also does not mention any specific instances of abuse or events. So it doesn’t say, ‘On this date, at this time or at this place, this thing happened. He did this to me.’ It just generally references being a victim of abuse,” the lawyer added.
‘Poke every little hole’ in Heard’s testimony
Gutenplan, who is not involved in the Depp-Heard proceedings in Fairfax, Virginia, maintained the weeklong adjournment couldn’t have come at a better time for Depp and his legal team given the wild details that have emerged. It gives Depp’s team ample time to prepare cross-examination of Heard, 36.
“They’re going to poke every little hole in her testimony that they can, and they’re going to try to create so many inconsistencies that they’re going to (tell) the jury, ‘If she can lie to you and misrepresent or change her story in these small ways, the entire testimony is polluted. You can’t possibly believe any of it,'” Gutenplan added.
Depp, from the outset, expressed that he is only bringing this $50 million defamation claim against his ex-wife in order to “clear his name” and recoup potential earnings he feels he lost from Hollywood due to Heard’s allegations.
Gutenplan noted that another challenge in the case is that both central characters “play roles for a living.”
‘Another challenge to the case’
“Their [Depp team’s] strategy has been, as you’ve seen in open court, to sling as much mud as possible, to discredit Ms. Heard as much as possible, and that’ll be what the cross-examination will focus on,” Gutenplan, a partner at Los Angeles-based Enenstein Pham & Glass, predicted.
“That’s what they’re going to ask the jury to believe. They’re going to make these tiny pinprick holes in the testimony and then to try to pull those apart as big as they can and hope that jurors will frankly think she was just acting. Which is another challenge to the case is we’re dealing with two people who play roles for a living. So, ‘Where does the truth start and end?’ becomes a lot more difficult.”
Gutenplan said it would be unwise to draw any conclusions at this stage of the trial, which would be akin to “taking a look in the mirror when you’re halfway done with a haircut.”
Depp’s legal team ‘knows how to try this case’
“Truth, as we know, is an absolute defense to a defamation claim. So if Ms. Heard can establish that she is a victim of abuse — even if we are assuming for sake of argument that she was talking about Johnny Depp — then he can’t win his claim,” the Gutenplan explained.
He added that Depp’s legal team “knows how to try this case” since “they know where they’re weak, they know where they’re strong.”
“[Heard’s] direct testimony the last day and a half in court I found it to be compelling,” Gutenplan said last week. “Obviously, she was giving repeated details and dates and instances and events and purported witnesses who can corroborate those events and fairly significant, obscene instances of abuse.
“I mean, we’re talking about serious stuff here. Not that all domestic abuse or abuse of any kind isn’t serious. But I think at least her story certainly rises to another level.”
‘Burden of proof’
“So let’s remember the burden of proof here,” Gutenplan added. “Johnny is the plaintiff. He has to prove by a preponderance of the evidence and convince the jurors that literally none of this happened. It’s one thing if the jurors think that Ms. Heard is embellishing a piece of this or maybe this didn’t quite happen the way that it happened. But to win, he would have to convince a jury that it’s all fabricated, that it’s all made up.”
During her initial testimony, Heard described an alleged sexual assault that took place over the course of a three-day fight between the couple in Australia in 2015.
Depp’s team has vehemently denied he ever sexually assaulted Heard.
A spokesperson for Depp said in a statement that Heard “did indeed deliver the performance of her life in her direct examination.”
“While Ms. Heard’s stories have continued to grow new and convenient details, Mr. Depp’s recollections have remained exactly the same throughout the six painful years since her first allegations were made,” the spokesperson said. “His truth — the truth — is the same no matter the environment in which it is has been presented. The upcoming cross-examination from Mr. Depp’s team will be most telling and will certainly highlight the many fallacies Ms. Heard has now attempted to pass off as fact throughout her convoluted testimony.”
A cross-examination of Heard’s claims will start when court reconvenes May 16 at 9 a.m. ET.