Heard, who lost in the case, wants a new trial. But Depp's lawyers argued Monday she has presented "no legitimate basis" for a do-over and that her motion to do so "verges into the frivolous."
Depp's lawyers filed a 40-page brief, obtained by USA TODAY, as their response to Heard's motion last week asking trial Judge Penney Azcarate to set aside the June 1 verdict by a Fairfax County, Va., jury that found overwhelmingly in Depp's favor, awarding him more than $10 million in damages.
Calling the verdict "indefensible" for a host of reasons, Heard's lawyers want the judge to throw out the verdict and dismiss the case or order a new trial. In a new demand filed Friday, she also is seeking a mistrial on the grounds one of the jurors should not have been allowed to serve on the panel.
Johnny Depp, Amber Heard case: Heard files to dismiss verdict or grant retrial
In response, Depp's lawyers said Heard's legal team failed to present sufficient reasons for setting aside the jury's decision or for retrying the case.
"Mr Depp respectfully requests that the Court deny Ms Heard's frivolous motion in its entirety and reject her outlandish requests to set aside the jury verdict, dismiss the complaint or in the alternative order a new trial," the Depp brief concluded.
"Though understandably displeased at the outcome of the trial, Ms. Heard has identified no legitimate basis to set aside in any respect the jury's decision," Depp's lawyers argued in their brief. "Virginia law is clear that a verdict is not to be set aside unless it is 'plainly wrong or without evidence to support it.' "
The brief goes on to argue that the verdict was consistent with the law and was supported by "overwhelming" evidence.
Regardless of what the judge decides, the legal battle between the two movie stars will continue, if not via a new trial then through an appeal Heard has vowed to pursue in Virginia.
What happened during the Depp, Heard defamation trial?
The dispute between the former couple stems from a column she published in The Washington Post in December 2018 calling herself a victim of domestic abuse. But it originated in May 2016 during Los Angeles divorce proceedings in which Heard obtained a temporary restraining order after accusing Depp of beating her before and after their 2015 marriage.
By the end of that summer, the restraining order was dropped and the ex-couple issued a loving settlement statement suggesting the matter was resolved amicably. Heard promised to donate her $7 million settlement to a children's hospital and the ACLU. Then, more than two years later, she published her column.
In 2019, Depp sued Heard for libel in Fairfax County, where the Post is published, asserting that she defamed him, damaged his reputation and his Hollywood career and cost him millions in income losses, even though her column never mentioned him by name.
After the Fairfax verdict, Heard and her lawyers made a series of TV appearances to talk about the outcome and reject the judge's decision to rule some evidence inadmissible. Heard's lawyer Elaine Bredehoft argued the jury was influenced by "lopsided" social media commentary during the trial, which was overwhelmingly against Heard, and thus the verdict is invalid.
"There’s no way (the jurors) couldn’t have been influenced by it," Bredehoft said.
One of the jurors, who were anonymous but not sequestered, later told ABC News that wasn't true, that the jury followed the judge's instructions not to read or listen to media reports, and that several members of the jury weren't even on social media.
Why does Amber Heard want a new trial?
On July 4, Heard's legal team filed a 53-page brief arguing that the verdict was unfair, inconsistent and "excessive," citing multiple reasons, including that Depp did not present evidence of required "actual malice" and that what Heard wrote in her column was "true" and thus protected by the First Amendment.
Heard's lawyers also are seeking a mistrial based on questions about the true identity of Juror 15, asserting a discrepancy in the juror's age. Heard's team suggests the wrong person showed up for jury duty, was improperly vetted by the court and thus may have served illegally.
“Ms. Heard’s due process (right) was therefore compromised," Bredehoft said in a new filing on July 8. "Under these circumstances, a mistrial should be declared, and a new trial ordered.”
How are Johnny Depp's lawyers responding?
In Depp's brief, his lawyers argued that an investigation of Juror 15 is "misplaced," at least in part because the Heard legal team failed to raise an objection about this juror at the time, thus waiving her right to challenge the accuracy of information about the jury panel selected.
Under Virginia rules, unless Heard can show the "irregularity" was intentional or that it would "probably" cause an injustice, then it can't be cause for setting aside a verdict or ordering a new trial, Depp's lawyers argued.
"Ms. Heard has shown no evidence of prejudice ... and therefore her belated argument regarding Juror 15 should be rejected by the Court," the Depp brief argued.
Depp's lawyers also argued that Heard missed a deadline to file her post-trial motions.
Despite what she said in her post-trial interviews, Heard's brief did not mention anything about the jury being influenced by social media, nor did it mention the judge's ruling that notes of Heard's therapy sessions in which she talked about Depp's alleged abuse were ruled inadmissible as hearsay.
Could Amber Heard really get a new trial?
How likely is Heard to prevail in her effort to set aside the verdict and start over? Not very likely, say some legal experts.
"There is almost no chance that Amber Heard is going to get a new trial," says Neama Rahmani, a former prosecutor and president of the Los Angeles-based legal firm West Coast Trial Lawyers who followed the case. Few of the issues she raised in her brief will "be a basis for a successful appeal," he says.
For instance, Heard argues that the jury should have been told about Depp's loss in a foreign libel trial against a British tabloid that called him a "wife beater," though he has never been convicted of that crime.
Rahmani notes that case took place in a different country with different defamation laws, it was decided by a single judge and not a jury, and Heard was a witness, not a party to the case. Even before the Virginia trial started, Judge Azcarate rejected Heard's attempt to get the case tossed based on the results of the London trial.
'Social media played no role': Johnny Depp's attorneys talk trial verdict on 'Today,' 'GMA'
"There are clear and established rules" about what is and is not permitted as evidence in an American civil trial, Rahmani says. "It would be an appellate issue for Depp, not Heard, if the judge had allowed an irrelevant verdict from another country in. It would be completely impermissible."
Rahmani says the verdict suggests the jury felt Heard lacked credibility on several issues, such as whether she actually donated her divorce settlement as she promised. She testified under oath to the London judge that she did but acknowledged on the stand in Virginia that she didn't because her legal bills had mounted.
Also, Rahmani said, Heard made mistakes, such as mentioning on the stand her belief that Depp had once pushed English model Kate Moss, a former girlfriend, down the stairs. That allowed Depp's team to call Moss as a virtual rebuttal witness; in her-five-minute-long testimony she denied this ever happened.
"She opened the door to talk about Kate Moss," Rahmani says. "The only reason bad evidence (for Heard) came in is because she opened the door."
This article originally appeared on USA TODAY: Johnny Depp lawyers call Amber Heard's new trial request 'outlandish'