As the dueling defamation lawsuits between Johnny Depp and Amber Heard approach closing arguments, for some context, it is worth briefly looking at the origins of defamation (also referred to as libel or calumny), which go back thousands of years to the time of the Roman Empire. The Praetorian Edict, codified circa AD 130, declared that an action could be brought for shouting at someone contrary to good morals. From that point on, Roman law aimed at protecting a man’s character from needless insult and pain. Most defamation-related penalties and remedies throughout history were monetary, but it is worth noting that in Anglo-Saxon England, slander was punished by cutting out the tongue. While whoever “wins” between Mr. Depp and Ms. Heard may prefer this antiquated barbaric punishment, their respective lawsuit and countersuit involve monetary damages as the remedy for defamation.   

In the current defamation court battle between this former couple, jurors will be asked to legally determine if statements were made that were purposefully false, and then determine whether those statements injured the claimant. Similar to employment litigation, where every juror has some type of employment experience, almost every juror has in some way a personal experience that will influence which side of the case the juror will be more likely to psychologically connect with. Short of an ugly divorce, most jurors haven’t experienced a heated personal battle in the public arena – but they have at some point felt snubbed, bad mouthed, “trashed” by someone else, or been the real or imagined victim of untrue statements or gossip. In laypersons terms, a defamation suit is really about tarnishing a reputation. Jurors can relate. But in this case, with the suit and countersuit, each individual is both the accuser and the accused.

During jury selection, litigants want to know which jurors have been falsely accused of something and feel their reputation has been harmed. Conversely, they want to know if someone in the pool has been accused of damaging someone else’s good standing or reputation. Sometimes voir dire on the topic devolves into an interesting and informative discussion about the First Amendment. Jurors who have been taken advantage of in a personal or business situation where people spoke untrue things might have an indirect “stake” in the outcome of the Depp-Heard defamation lawsuit. Another topic to consider during jury selection is juror attitudes about the amount of information that is “out there.” Compared to 10 years ago, more jurors, especially those under 35, feel that information is ubiquitous and so harm from false statements seems unrealistic. On the other hand, hardcore libertarian types who disapprove of the ubiquity of personal information might embrace a plaintiff’s claims. Again, this applies to both litigants.

As mentioned, the key dynamic in the Depp-Heard lawsuit is that each litigant is both plaintiff and defendant. Mr. Depp could have the advantage of being the first to file the lawsuit, and some jurors might feel Ms. Heard’s counterpunch was vindictive. But both parties are making the very same claim against one another. Each side is saying they were victimized and harmed by untrue statements, and each side is denying the statements they made about the other were untrue. Unless one of the litigants appears significantly more likable, credible and truthful, a split decision could very likely result. Given the celebrity status of the litigants, some jurors might have already checked out and do not even care who is victorious.

Mr. Depp is seeking $50 million, and Ms. Heard is asking the jury to award $100 million. I would not be surprised if the jury awards each litigant $50 million, essentially canceling everything out and sending a message that they both made grievous mistakes in how they spoke/communicated about one another. Or the jury might feel as if they both overreacted by filing defamation lawsuits and award neither party a dime.

In certain civil cases where a plaintiff sues for emotional distress damages, jurors often reason that airing everything in a public forum is more emotionally damaging than anything that preceded the trial. Some jurors in the Depp-Heard matter might have this rationale: that Mr. Depp and Ms. Heard are both being harmed more by what is being said in court compared to the original Op-Ed piece authored by Ms. Heard, or by Mr. Depp and his lawyer saying Ms. Heard’s allegations are a hoax. Will the person who wins this case confidently feel as if his or her name was really cleared? One thing for sure is that if either party prevails over the other in a significant way (e.g., Depp is awarded $50 million and Heard gets nothing or she gets $100 million and he gets zero damages), the prevailing party will have been deemed an honest victim and the other a spiteful fabricator. If the gap is a big one, one party will win. Absent such a gap in perception of the parties, there will be some type of split decision by the jury.