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What Legal Experts Think of Amber Heard’s Chances on Appeal

9 minute read

A jury may have come back with a victory for Johnny Depp in his defamation suit against ex-wife Amber Heard, but the legal drama is far from over. Heard’s lawyers have said that she will appeal the decision, a process that will likely take years. TIME spoke to experts about what happens next in the case, Heard’s chances of winning an appeal, and how far this legal fight could go.

First, a bit of background on the case itself. Depp had sued Heard over a Washington Post op-ed published in 2018, in which Heard called herself a “public figure representing domestic abuse.” Heard never named Depp as her abuser. Still, Depp claimed that the opinion piece hurt his career. Heard then countersued, claiming that Depp’s attorney Adam Waldman, as an agent of Depp, defamed her by calling her allegations “a hoax” in the Daily Mail.

Many legal experts doubted that Depp would win the case: The actor had lost a similar libel suit in the U.K. against the tabloid The Sun in 2020. In that case, a British judge wrote that he found The Sun’s statement that Depp was a “wife beater” to be “substantially true,” and that Depp had assaulted Heard on at least 12 occasions. But the outcome of that case was decided by a judge, not a jury, nor was the trial televised, as the U.S. one was.

In the U.S. case, the jury handed down awards to both Heard and Depp. They found that Heard defamed Depp with “malicious” intent and awarded Depp $10 million in compensatory damages and $5 million in punitive damages. Judge Penney Azcarate then reduced the punitive damages to Virginia’s statutory cap of $350,000. But the jury also awarded Heard $2 million in compensatory damages on her countersuit. The verdict has left many confused since awarding damages to Depp would suggest that they believed the Pirates of the Caribbean star when he said Heard lied about the abuse she alleged, but awarding money to Heard contradictorily suggests they believed her claims of abuse were not, in fact, “a hoax.”

Legal experts are divided on what Heard’s team will—or should—do if they plan to appeal the case. The jury seemed to find Depp’s story more credible than Heard’s. And experts agreed that appellate courts tend to be reluctant to reassess credibility judgments made by juries, even if this jury’s conclusion seemed contradictory. “Anyone appealing has an uphill battle,” says Rebekah Sullivan, a Washington, D.C., attorney who focuses on family law. Most likely, the lawyers who spoke to TIME said, Heard’s team will argue some legal error was made during trial and will try to overturn the verdict on the basis that the jury was influenced by things they saw and heard outside the courtroom.

Read More: The Depp-Heard Trial Perpetuates the Myth of the Perfect Victim

Whatever Heard’s team decides, an appeals court won’t hand down a ruling anytime soon. “It’s a long, expensive process,” says David Ring, a Los Angeles civil trial lawyer. He and other experts estimated the appeal would take two years minimum. Several attorneys who spoke with TIME speculated it will cost Heard hundreds of thousands of dollars in addition to the likely millions she’s already spent in legal fees. “But when you’re facing a $15 million judgment,” says Ring, “you certainly have to probably pursue that.”

Before the appeals process even begins, experts say it’s likely that Heard (or her insurance company) will have to put up some sort of bond that shows she has or can raise the money that she owes Depp. Given that Heard and her lawyers have said this trial has been a financial burden for the actor, Heard’s ability to post the bond is not guaranteed.

Still, if she does proceed, her team may have a better chance in front of an appeals court than the jury of five men and two women who awarded Depp damages. The trial was televised live, jurors were not sequestered, and videos and memes of Depp and Heard on the witness stand, including overwhelmingly pro-Depp commentary, were inescapable on social media platforms like TikTok. “I would expect the appellate portion of the case, where the audience is judges, to focus more on legal arguments and a lot less on the theatrics that we saw in the trial where the audience was a jury,” says Sullivan.

Ring agreed: “It was a spectacle,” he said of the original trial.

Read More: Why You’re Seeing So Many Johnny Depp Defenders on TikTok

On appeal, there would be no cameras and no opportunity for Heard’s testimony to be picked apart, edited, and misconstrued on social media. Three appellate judges in the Virginia Court of Appeals would decide the case largely by sifting through documents written by attorneys for either side. Depending on the outcome, the case could then be appealed to the Virginia Supreme Court, which has the discretion to take the case or refuse to hear it, and ultimately to the U.S. Supreme Court, which has the same discretion.

According to experts, there are a number of arguments Heard’s team could make. Her attorney Elaine Bredehoft made comments after the trial that would seem to suggest that she will focus on evidence. She has suggested that some pieces of evidence Depp was able to introduce were “prejudicial” while certain evidence from Heard’s team was “suppressed” at trial, including evidence that was permitted in the U.K. trial but not the U.S. one.

“This trial judge let in a lot of evidence in this case. I mean, a lot,” says Ring. “I think things went kind of far afield from what the real issues were…So that’s the basis for an appeal, though not necessarily a great basis for appeal.” He adds that evidentiary rulings are rarely the basis used by an appellate court to overturn a jury verdict.

Mary Anne Franks, a professor at University of Miami School of Law who focuses on civil rights, says that Heard’s team might challenge the judge’s decision to allow the trial to be live-streamed, “a particularly unusual decision given that the case involved allegations of sexual abuse and domestic violence,” as well as the judge’s decision not to sequester the jury which resulted in “a trial by social media.”

Read More: Depp v. Heard Reminds Us That the Legal System Is Still Stacked Against Survivors

Azcarate did remind the jury over and over again to not watch news about the trial at night. But even logging onto Instagram or Twitter or TikTok might have led jurors to memes about the case, including unfounded allegations that Heard faked bruises and persuaded witnesses to lie.

“I actually think that’s a pretty good argument,” says Sullivan. “What was so extraordinary about this trial is the social media and news coverage of it, kind of a circus of public opinion. With this case, you have your jury going home, their families have certainly been following this. They see the TikToks and the tweets. And the unsequestered jury is being exposed to things that were not admissible in the trial. So to the extent that Heard’s lawyers can argue they were influenced by outside factors that weren’t admitted in trial, that actually has a pretty high likelihood of success, in my opinion.”

But Ring believes that argument would be “a loser” on appeal because, he says, the idea of sequestering juries has fallen out of favor in modern courtrooms. “It’s just not realistic to sequester juries for six weeks without their phones anymore,” he says. Heard’s team can, however, interview the jurors from the trial about why they ruled the way that they did. “If they interviewed them and the jurors say, ‘We followed TMZ every night,’ OK, now you’ve got a basis for appeal. But I don’t think anyone’s going to admit to that if it happened.”

Many legal commentators have questioned whether Heard’s 2018 op-ed actually rises to the level of defamation considering the specific words in the piece. “Given that the op-ed never mentions Depp’s name and is largely devoted to the broader topic of the challenges facing women who speak out against abuse, it strains credulity to argue that the op-ed harmed Depp in any meaningful way,” says Franks. “And especially in any way related to his career, which was already struggling due to well-documented behavioral issues.” In fact, Franks points out, Heard did not write the headline for the piece, one of the statements at issue. She merely retweeted it.

Sullivan also thought Heard’s team could focus on the headline when they appeal. Defamation—or the act of damaging someone’s good reputation with a false statement—is, essentially, an exception to the First Amendment right of freedom of speech. But if people who merely retweet news stories can be held responsible for defamation if the article is inaccurate, that might present major First Amendment problems for millions of Twitter users. Sullivan said that it’s possible Heard’s lawyers could leave open the option to take the case to the Supreme Court by focusing on this First Amendment issue. “They will be sure to include a First Amendment claim if they want to take this all the way,” she says.

Though legal experts were divided on whether Heard stands a chance against Depp if she appeals her case, they agree it may be worth the risk for Heard. “In no way, shape, or form,” says Ring, “is this a slam-dunk winner for Johnny Depp on appeal.”

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Write to Eliana Dockterman at eliana.dockterman@time.com