The Pirates of the Caribbean star has won the hearts of supporters and fans on social media who seemed to be charmed by his tongue-in-cheek remarks and conduct throughout the high-profile trial.
But legal experts warn that Depp’s ‘smartass’ comments – including joking about his drinking – could make him look ‘unsympathetic’ to those who will actually be deciding his fate: the jury.
The actor’s laughing and joking during Heard’s testimony could make him less ‘likable’, two top defamation lawyers in Virginia, where the case is being held, told DailyMail.com.
They also predicted that both sides could potentially lose their cases because neither has met the standard for defamation yet.
Legal experts say Johnny Depp is potentially jeopardizing his $100million defamation trial against ex-wife Amber Heard with his conduct in court
Depp’s tongue-in-cheek remarks and fits of laughter could be off-putting and paint him as ‘unlikable’ or ‘unsympathetic’ to a jury, lawyers told DailyMail.com. Pictured: Spectators in the gallery at Fairfax County Circuit Court last week
The trial, which is being held at Fairfax County Court, is currently on a break for a week, but returns on Monday when Heard, 36, will continue giving evidence.
Depp, 58, is suing his ex-wife for $50million over a 2018 Washington Post op-ed in which she claimed she was a victim of domestic abuse. Although the piece did not name Depp, he alleges it cost him $40million in acting jobs including his iconic role as Captain Jack Sparrow in the Pirates of the Caribbean films.
Heard, 36, meanwhile, is countersuing for $100million, claiming Depp’s allegations have smeared her and destroyed her career.
Over the first four weeks of the case the jury has heard explosive testimony including claims that Depp headbutted Heard and sexually assaulted her with a bottle.
The trial has also seen some moments of comic relief on the stand as a result of minor gaffes from witnesses and even Depp himself.
At one point in his testimony when asked about his drinking habits, Depp quipped: ‘Isn’t happy hour any time?’
He has also been seen shaking his head dismissively, and snickering and laughing at some of Heard’s claims in court.
But according to Virginia lawyer Lee Berik, the Hollywood star could be sabotaging his case with his laughter while Heard was giving grueling and emotional testimony.
‘In Fairfax, Virginia we don’t get a lot of celebrity trials,’ Berik told DailyMail.com.
Depp was seen laughing during the cross-examination of his bodyguard last week after the witness was asked if he had ever seen the actor’s penis
Depp has been seen shaking his head dismissively, and snickering and laughing at some of Heard’s claims in court
Depp also made a number of flippant remarks during his testimony earlier in the trial. At one point when asked about his drinking habits, Depp quipped: ‘Isn’t happy hour any time?’
‘In a normal case where nobody knows the parties and you have somebody suing his wife for $100million, you don’t want to see that person giggling and chuckling to himself and making smartass comments on the witness stand.
‘You want the jury to sympathize with your client and they have to be likable for that. If you’re acting like this is just fun and games that could turn a lot of people off.
‘But I don’t know how Johnny Depp being Johnny Depp changes that. Normal people aren’t met by 100 screaming fans as they enter the courtroom. I think it will turn some people on the jury off but will it turn all of them off?
He continued: ‘Amber Heard was sitting up straight and focused on Depp and making a neutral expression but online people have been saying she’s giving him the evil eye.’
On the other hand, Steven Krieger, a lawyer based in Virginia who handles defamation cases, said that Heard’s stoic disposition could cause her problems too.
He said: ‘It wouldn’t surprise me if there was at least one juror who found each of their reactions to be inappropriate or not credible or in some way negative.
‘As for Depp, you don’t want to appear to a jury that you’re making jokes, snickering, or not taking this seriously.
‘As for Heard, you don’t want to be staring straight ahead with a deadpan expression on your face. Both should be trying to appear sympathetic, humane, and like the victim.
Amber Heard broke down on the stand last Thursday as she detailed how Johnny Depp sexually assaulter her with a liquor bottle in March 2015 in Australia at their rented home
As for Heard, the legal experts told DailyMail.com, she should avoid ‘staring straight ahead with a deadpan expression’ as she was at times seen doing before taking the stand last week
Legal analysts said that Amber Heard’s stoic disposition during proceedings could possibly hurt her case as well
‘If you’re trying to prepare your clients for a jury trial you want to have some physical disposition in between what both of them have been doing.’
The case has generated significant media attention due to the explosive claims levied by both sides.
But Berik told DailyMail.com he believe both sides could lose their claims because each have yet to meet the required threshold.
Should the jury find ‘just a single act of abuse by Johnny Depp against Amber Heard’ and if they are doing their jobs properly, they would likely find her op-ed was truthful, and Depp would then likely lose his case.
‘Most of what I’m hearing so far is about all kinds of details about all sorts of incidents with fingers getting chopped off and people pooping in beds and doing cocaine,’ Berik said.
‘But when you read the op-ed there’s not a lot in there and I’d expect Heard’s lawyer to instruct the jury very carefully about what this case is really about.’
Depp and Heard are seen in September 2015 in Venice, Italy. Both sides have employed scorched-earth tactics since the explosive suit was first filed
Berik said that Heard’s lawsuit was a ‘kneejerk reaction’ that was based on comments by Depp’s lawyer that seemed like a denial of her op-ed.
As Berik sees it, the comments cited in Heard’s counterclaim do not have the ‘same sting as a real defamatory comment.’
He said that if the jury looks past the celebrity participants then ‘both sides will walk away empty handed.’
‘I don’t think either side will get anything,’ he added.
Krieger also believes both Depp and Heard have ‘very difficult defamation cases to win’.
Depp bears the burden of proof in this case and has to convince the jury he was not abusive, meaning he effectively has to prove a negative.
‘How do you prove a negative? It’s very challenging,’ Krieger said.
Then there is the problem of how you work out what the damages could be, assuming one party wins.
Krieger said: ‘Part of Depp’s damages could be the money he lost for losing his role in Pirates of the Caribbean, but there’s also presumed damages to your reputation if Depp can prove that the statements negatively impact him in his profession.
‘However, if his reputation was already damaged because of his substance abuse issues or anything else going on in his life, then it’s unclear how much further damage was done by the defamatory statements.
‘The reality is you can only prove reputational damage if you had a positive reputation to begin with.’
Depp sued his ex-wife Amber Heard for libel in Fairfax County Circuit Court after she wrote an op-ed piece in The Washington Post in 2018 referring to herself as a ‘public figure representing domestic abuse’
Legal experts believe both Depp and Heard have ‘very difficult defamation cases to win’. Pictured: Judge Penney Azcarate who is presiding over the trial
One issue being discussed among those who follow the case is how the jury will react to evidence that Heard, who has claimed to be a victim of abuse, hit Depp.
Among the material played to the jury was an audio recording where she admits to ‘hitting’ Depp but denies ‘punching’ him.
Depp, in his evidence, described how Heard once punched him in the face – an act she claims was in defense of her sister.
Krieger said that this could be a ‘mitigating factor’ for the jury but admits that even if the jury finds Heard was also abusive, they could still decide in her favor.
‘If the jury finds that she beat him up, it definitely could muddy the waters because a jury may decide that Amber’s testimony about how she was abused is less credible if she’s also abused Johnny,’ he explained.
‘The jury will have to decide who is more credible and they may throw up their hands and say, “we can’t figure it out”, which would effectively mean that the plaintiff hadn’t met his burden of proof.’
The same jury of seven people that decides the case will have to decide what damages to award Depp or Heard, should they find in their favor.
But there is little guarantee of what that money could be – if anything at all.
Berik said: ‘Really, they’re going to do whatever they want to do. Maybe it will be based on a calculation with scientific precision. Sometimes it will be based on what their gut tells them.
‘This is why jury trials are risky,’ he added.
And according to Berik, whatever the outcome, the case will almost certainly be appealed to the Virginia Supreme Court – meaning this will likely not be the last you hear about Depp vs Heard.