What Happens If Amber Heard Appeals the Verdict? (Sidebar Podcast EP. 36)

have never. in my life. committed. sexual battery. physical abuse. all these. [Music]. outlandish outrageous stories. of me committing these things. and living with it for six years. no matter what happens i did get here. and i did tell the truth.

every single day i have to relive the. trauma. my hands shake i wake up screaming i. i have to live with the trauma and the. damage done to me. this is horrible. this is painful. and this is humiliating for any human. being. to go through. welcome to sidebar everybody presented. by law and crime this is where we recap. the biggest moments in the day's biggest. cases i'm jesse weber so many questions.

are coming out in the aftermath of the. johnny depp versus amber heard. defamation trial where johnny depp. basically won his entire case against. his ex-wife amber heard the jury found. her liable for defamation for three. statements that she made in the. washington post op-ed piece that she. penned and she only won on one of her. counter claims against depp for. defamation regarding a statement made by. depp's attorney adam waldman the jury. awarded depp 15 million dollars in. damages but that amount was actually.

reduced by law to 10 million 350 000 the. jury awarded herd 2 million dollars just. to be clear just to set the record. straight this is a major major loss for. amber there's really no spinning this. but now the question that we keep. getting on the network that we keep. getting. whenever even on social media is what. about the appeal what happens next you. know her attorney elaine bretoff made a. little bit of the media tour and she. said she publicly said that amber heard.

is going to appeal so let's talk about. the likelihood of success of an appeal. for amber heard and joining me right now. is one of my favorite guests on the long. crime network who can help answer this. he is an appellate and litigation. attorney matthew barahoma joins us. matthew it's good to see you. good to see you jesse always a pleasure. thank you so walk us through generally. speaking how successful an appeal is. because my understanding is it is not. very successful.

to get a successful appeal. yeah no it's hard actually. you know any appellate um any anyone. who's actually appealing a case they. come to the appellate court with a. pretty high bar okay amber heard is not. going to have an easy pathway here um to. an appeal but there could be some things. that um if she uses her advantage that. could help her um could sway in her. favor but it's generally a very. difficult thing to do well the number. one thing that we keep seeing come up. whenever you read articles oh what's.

going to happen with amber herr's appeal. and elaine bredehoff mentioned this was. the jury biased right was the jury. tainted at all this has been a common. tactic we even saw it come up in the. scott peterson's case this. massive media attention to this case is. what was undeniable right but isn't it a. little speculative to say at this point. that of course the jury was tainted by. everything that was happening outside. the courthouse all of the social media. pressure and online you know accounts. that were against amber heard so this. argument for an appeal that the jury was.

tainted because of all of the media. exposure. and what was happening outside the. courthouse what do you make of that. i listen i i empathize with with amber. when it comes to this right there was a. lot of that now the the only problem is. we we forget that the jury sometimes are. human beings right we instruct them you. know don't don't read the media don't. talk about this with friends don't do. any of this but ultimately if they. opened up instagram or any social outlet. like tick tock or anything like that. they were inevitably going to see.

exactly the social media parade that all. of us were seeing so it's very difficult. for us to say that you know they were. totally unbiased that they totally. didn't you know receive this information. and they they saw everything in court. but not only that i watched a lot of. this trial okay i was glued to the tv. just like everyone else and a lot of. times when i'd watched the trial i'd. feel one way but then when i'd go on. instagram or i'd go on social media. somewhere i'd be seeing the same. information translated a little.

differently right and it almost could. change the way that you feel about it. right you saw you saw it there and the. jury saw it in person and then they. subsequently saw another reverb of it. that may be read off a little. differently so there is some inherent. possible bias is it so clear is it so. apparent that an appellate court's going. to take on jury issues. i doubt it jury issues are amongst the. even highest issue most difficult issues. uh to bring about um on appeal so um i.

wouldn't say it's totally you know gone. but it's difficult it's funny you. mentioned that i saw that online social. media i even listened to other podcasts. about what was happening in the trial. and i was amazed at how much. misinformation there was so many people. misinterpreted what was happening in. that courtroom. and they were making their own facts. they were making their own theories and. they were getting the whole case wrong. and i thought the more and more that. goes out it was dangerous and you know. because we're covering the trial every. day so it alarmed me but wouldn't you. have to have the jurors interviewed.

wouldn't you have to know. precisely if they were looking at social. media you can't just guess you can't. just say oh this was a big trial they. must have been biased successful appeal. don't you have to sit down and interview. the jurors. yeah you you really do but even then. even then you you reference even the. scott peterson case something happened. there where one of the jurors gave some. information after the fact right same. thing here and even that with the way. that our evidentiary code is set up in. america and how it is in most in most.

states especially virginia right what. you're going to get is you're going to. get a lot of bar to anything that the. jury has to say after the fact they're. going to bar any kind of statement after. the fact because we look to achieve. finality to some extent so even if. something was to come about even that. statement alone may not be sufficient to. to bring down this kind of verdict from. the appellate court but if you had a. juror who came forward and said. yeah i was watching long crime every day. and listening to their analysts and that. matthew barhoma really convinced me one.

way. i would absolutely take it to the bank i. would uh i would pounce on that and it'd. be very relevant right it'd be a. relevant piece of the discussion let me. ask you this it's the very fact of the. judge having cameras in the courtroom. which is sometimes unique you know. sometimes it can be a controversial. decision with this kind of case can that. decision by the judge and i think we. have to be clear when you're talking. about an appeal you're talking about. legal errors legal mistakes. that were made during the trial court.

could can an appellate court say i. disagree with the judge's decision to. allow court uh to allow cameras there. okay so that's a very big factor because. and i've been reading about this online. a lot people are saying she's going to. go to the appellate court based on that. if that's the case listen i've brought. media attention to my own cases before. okay and the press makes um you know. essentially a request with the court and. the court grants it or not there is a. eight factor checklist you know that the. court has to go through but in a case.

where there's public interest almost. always a judge is not going to be. reviewed on appeal if they made a. decision a judgment call that cameras. could be in the courtroom here you. didn't just have one celebrity you had. two celebrities not only that the case. has been in the media for years already. leading up to this trial right so um i. don't think a court as an appellate. court is gonna second guess a court's. opinion to bring in uh you know some of.

the cameras but does it walk a fine line. especially with these jurors absolutely. because anyone could argue but for these. cameras maybe there wouldn't be this. kind of social media presence and maybe. we would have had a more straightforward. proceeding in this case right um. that by the way i agree with you because. the uk trial with johnny depp suing the. publisher of the sun. i don't think a lot of people were. following it i mean put it this way. there were people following it but they. weren't following it like this and that. partly was the reason there were no. cameras there yeah absolutely i mean you.

also made every witness a a a celebrity. right every witness got their moment. of fame almost and there was so much. that went into what their testimony. looked like after they took the stand. and without the cameras none of that. would have been apparent in this case. so another big issue that it seems her. side is going to be pressing on appeal. was that there was and this is again. from elaine bredehoff when she i think. she said this on the today show. that there was evidence that was. suppressed that they wanted to get in. that wasn't allowed in something to do.

with amber heard's medical records they. said that there was evidence that was. allowed in the uk trial that wasn't. allowed in this case. um what's your thoughts on that aspect. of being a successful appeal that the. judge didn't allow certain evidence in. yeah you know i i heard the same. statements i watched that same segment. and my you know my appellate brain was. going off that's exactly what she's. hitting on it's evidentiary issue so far. from everything i've seen in this case. from everything i've reviewed that seems.

to be the strongest arguments that she. has and even that is going to be a. difficult argument i'll explain to you. why so they're basically alluding that. there is evidence that should have been. submitted to this jury but this jury. didn't get an opportunity to see it. because the juror the judge denied it. ever coming into evidence right and. they're going to claim that that. evidence was very relevant and it was an. abusive discretion that's the standard. it was abusive judicial discretion not. to bring it in that's the standard and. those are the key words why because.

judicial discretion is a very high bar. for appellate courts especially when it. comes to evidentiary issues right the. judge is. at firsthand right they get to observe. they get to hear each side make their. argument about every piece of evidence. firsthand so a lot of appellate courts. are weary. to overstep on that because that judge. had the best position to make that. judgment call and even if that judgment. call didn't seem like it was the best.

a lot of times it'll be termed harmless. error because they were the best person. most suited to be able to make it now. there was a really important piece of. information that that was there was a. text message from johnny admitting that. he had kicked her feeling bad that he. had kicked amber right and that wasn't. allowed in and if they do bring that up. on appeal. i don't think they're going to be. successful because they tried to bring. it in when he was on rebuttal when he. was on the stand they tried to bring it.

in they tried to get him to talk about. it he wouldn't they tried to introduce. it in sidebar once again they couldn't. so. from from my perception. this court went through every logical. step and made a judgment call and that. judgment call on appeal i don't think is. going to be overturned real quick. matthew wouldn't it have to be well if. this evidence was introduced then it. would have led to a different result. with the jury a different verdict and. i'm of the opinion. they were inundated with a lot of.

information and let me tell you a lot of. information on amber heard side they had. corroborating witnesses they had photos. they had the infamous kitchen video of. him you know just throwing cat but. hitting cabinets kicking things and it. makes me wonder even if that evidence. was allowed in would it have changed the. verdict would have changed the jury's. decision am i thinking about the appeal. the right way here. absolutely actually that's exactly what. i think is going to be cited in an. opinion if they bring up this issue. which is that the appellate court's. going to say there was a barrage of.

other incidents. there's a handful of other instances. that this jury could have picked out. adding this one in is not going to be. the item that absolutely sways this. completely changes the outcome and. having a substantially different kind of. outcome is a p it's a relative factor. when you're when you're looking at every. piece of judicial um you know misconduct. not misconduct but uh abusive discretion. let's do a catch-all here matthew what. about everything else you can appeal. like in terms of the jury instructions.

the verdict form you make objections. during the course of witness testimony. you make objections on the record you. gather this whole record of objections. and things that you think are. problematic and improper rulings by the. judge. anything there in this catch-all kind i. know i'm kind of simplifying it but. anything there. that might benefit amber heard in an. appeal. you know i'm gonna say yeah and you know. what it is. in in trial it feels a lot like the. jungle right you got this jury you got.

the judge you got attorneys on both. sides arguing you got people in the. gallery you have the clients themselves. these are high net worth clients you got. the cameras you have a lot going on on. appeal. there is none of that okay there is no. jury there is none of it there is not. one judge but three judges it's a very. black and white legalized process and if. anything amber heard has going in her. favor it's the fact that this is going. to be in front of three judges and it's.

going to focus only on the legal issues. if you're complaining that johnny depp. was a bigger star outstarred you right. swayed the jury swayed the general. public opinion well on appeal. all of that is taken out right you're in. a very legalized process so if if if. there is a catch all i would say the. best thing that's going on in her favor. is if she brings all those arguments. they're going to be reviewed on a. strictly legal standard. and it's not going to have the same same.

kind of salacious details or cameras. like in an appellate court as we saw in. the trial court you know we talk about. the appeal and when we talk about it. it's if she can get a successful appeal. and the you know the the verdicts thrown. out and maybe get a new trial what about. appealing just the mo the monetary. judgment what about just appealing the. damages award walk me through how she. might be able to get that amount reduced. because we did actually a prior podcast. about whether or not she'll even be able. to pay out the 10.35 million yeah yeah.

well you know speaking on paying out. this court might even require her to. have a bond to post a bond to appeal. meaning she has to show some kind of. wealth to just be able to move forward. but if i was johnny depp i'd be arguing. that she would need to post a bond she. needs to prove that she could pay this. judgment um if she wants to appeal this. case and what it would be it'd be a. percentage of the overall judgment so. the overall judgment is 10 million 350. 000 it could be 30 40 she has to post.

that in a bond that money sits in an. escrow-like function while the appeal is. pending this is so that we could. preserve some money to make sure that we. can make the plaintiff whole if all. items were affirmed okay so it's it's a. safeguard it's a procedural safeguarding. place but um you know uh can the. appellate court review. only the damages portion so you know not. focus on all the issues but focus on the. outcome to some extent yeah and the.

system has already taken its course on. that because johnny was originally. awarded 15 million and immediately the. judge um revised it to 350 000 because. there was a cap um in in virginia's. statute so um on punitives so you know. the court has already gone in on. punitives where they have the most. discretion because punitive damages are. just intended to punish you the. compensatory damages the appellate court. could look into it so they could look at. the 10 million to see if it was possible.

they could do something called remitted. or added or remitted or would basically. remit might bring down the amount added. or they might add more to it they might. think that he wasn't he didn't receive. enough this jury didn't give him enough. they could do that it's rare and the. reason is judges like finalities in jury. verdicts where a jury reached the. finding of fact let me ask you this. one of the things that we've been. talking about as well i actually think. this might be a really good idea for. johnny depp is to wave.

collection of the money award to say hey. listen amber. i'm not going to collect this from you. all right the 10 million dollars wasn't. important to me it was about clearing my. name it was about getting my reputation. back hopefully getting my career back. here's what i'm gonna do. i am going to waive the right to collect. this monetary award this monetary. judgment you in exchange don't appeal. this do not fight this anymore and and. we'll move on from that. is that something that could happen and. do you see it as a possibility.

you know i would love to see it happen. the reason is johnny has done a lot of. character building in this case right. he's brought in a lot of. items that deal with his character and. one thing that he loved to bring out to. boast about was that he paid all. communal you know divorce taxes he paid. her the 7 million in the divorce he took. care of everything when he didn't even. need to right so it would be nice to see. him wave this judgment and tell her not. to appeal like that would be right in. line with the character that he had drew.

out in in trial so um it might be a very. good outcome to a case like this. unless of course imagine he collects the. money and then donates it to the aclu. and he donates it to the children's. hospital of los angeles the very. charities that she was supposed to. donate the divorce settlement money too. but having said that i don't think he's. going to donate money to the aclu. considering they were instrumental in. writing the washington post op-ed so. matthew before we sign you off i want to. ask you one more question about this. appeal the the process the how much time. this is going to take um i imagine it.

could go all the way up to the virginia. supreme court could it eventually make. its way to the united states supreme. court and how long would this process. take. it would be unlikely that it makes it to. the supreme court of the united states. of america though it could if it had. fundamental first amendment issues that. really dealt with the constitution this. is generally a state thing okay now with. that being said um. can it take a long time generally yeah. people what you're reading out there is. right right the appellate process is. quite slow okay.

there's a number of things that have to. take place number one is they have to. produce the entire record okay so that's. going to take the longest time producing. the entire record for all the parties to. be able to review and do all that and. then the appellate so if that's going to. be amber heard if she's the one who's. appealing she's going to have to file. her opening brief johnny's going to get. one reply at it it's the response brief. and then she's going to get to respond. to that and then each side is gonna have. their day in court maybe 15 20 minute. oral argument maybe in a case like this.

it'll be extended to 45 and then you'll. get an opinion so that could take that. entire process there could take about a. year maybe chill but in a case this high. profile you never know they might step. on it and not allow any any extensions. one of the things that by the way i just. love as a side note when we when we talk. about legal cases and this is something. from from law school is when we say well. johnny depp is going to file or johnny. depp will orgy argue or amber heard is. going to respond. it's never them it's their attorneys but.

we just say because they are the parties. in this case but could you imagine. johnny depp gets in front of the. virginia supreme court and argues the. case against amber heard i always found. that so funny when we say that just to. everybody no no it's not actually them. it's their attorneys and legal team who. are good. so matthew barhoma this was fantastic. thank you so much for clearing up this. issue for us i think we all have a great. understanding of what to expect in the. appeals process uh let everybody know. where they can find you um you can find. me. at. barhomo law that's that's my main firm. there's also another firm that i am a.

partner in it's a new injury firm called. power trial lawyers and actually that's. where you could see all my interviews um. there's a press tab and you can find all. the information that i do online there. and you can listen and watch matthew. barhomo on the long crime network. matthew thank you so much appreciate it. thank you jesse always a pleasure so. everybody uh please support sidebar if. you like what we're doing here please. subscribe on apple podcast spotify. youtube or wherever you get your. podcasts i'm jesse weber we'll speak to. you next time.

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