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Amber Heard faces uphill climb, 'long shot' in appeal, legal experts say

Appeals are "really hard to win statistically speaking," one lawyer said.

After lawyers for actress Amber Heard said she “absolutely” plans to appeal the verdict in Johnny Depp's defamation lawsuit against his former wife, legal experts said she faces difficult odds and an uphill battle.

Appeals are hard to win, and an appeal is not a new trial but examines whether a trial was fair and whether any mistakes changed the outcome, they said. 

“It’s absolutely a long shot,” said Jeff Lewis, a defamation and appellate lawyer in Los Angeles.

Depp sued Heard for $50 million after she described herself as a “public figure representing domestic abuse” in a 2018 Washington Post op-ed, and she countersued him for $100 million.

The jury awarded Depp $10 million in compensatory damages and $5 million in punitive damages; Heard was awarded $2 million in compensatory damages. A judge reduced the punitive damages awarded to Depp to $350,000, making his total $10.4 million. 

Heard “absolutely” intends to appeal, her lawyer, Elaine Bredehoft, told NBC’s “TODAY” show on Thursday.

Amber Heard at the Fairfax County Circuit Courthouse in Fairfax, Va, on June 1, 2022.
Amber Heard at the Fairfax County Circuit Courthouse in Fairfax, Va., on June 1, 2022.Evelyn Hockstein / Pool - AFP via Getty Images

“She has some excellent grounds for it,” Bredehoft said, adding “there was so much evidence that did not come in” related to Depp’s lost libel case in the United Kingdom two years ago over allegations that he hit Heard.

Appeals are “really hard to win statistically speaking, anywhere between 70 to 90 percent of all appeals result in no change in the judgment,” Lewis said.

Lewis said Heard can appeal as a matter of right as long as she files a form within 30 days of the judgment. He also said the appellate process would be very different “than the circus that was this trial.”

Transcripts are made of all court reporter notes and all the exhibits are sent to a different courthouse with three appellate judges, he explained. Those judges determine whether the trial was fair and, if a mistake occurred, whether it altered the outcome, Lewis said.

Danny Cevallos, an NBC News legal analyst, said an important takeaway was “anyone appealing a jury verdict, off the bat, the odds are against them.”

“That’s the way the system is designed because appellate courts are very reluctant to overturn jury verdicts because of the respect that they have for the jury,” he said, adding, “So any appellant faces an uphill climb just because of the deference that appellate courts give juries and trial judges.”

Bredehoft has said Heard’s medical records were suppressed, which she said were “very significant” because they showed “a pattern going all the way back to 2012 of Amber reporting this to her therapist.”

Lewis said arguments about evidentiary ruling matters that were excluded from trial can be some of “the hardest to win because the judges are most deferential on appeal.” Some arguments on legal issues are easier to win, he said, such as if the jury was improperly instructed, if there was a problem with the verdict form, or if there was a technical issue with how the trial was run, he said.

While Depp sued Heard over the 2018 op-ed essay, Heard's countersuit centered on three statements made by Depp’s former attorney Adam Waldman in 2020 to the Daily Mail, in which he described Heard’s allegations of abuse as a “hoax.”

The jury found that Depp, through Waldman, defamed Heard on one count. The jury did not award her any punitive damages.

Cevallos said Heard’s lawyers would “face some really long odds” based on the overwhelmingly negative response to her on social media and its possible impact on the jury.

Heard’s team would have to show much more than just "there was negative publicity," Cevallos said.

"You’re going to need to show that a juror was actually affected by it," and that "it affected their deliberations or the verdict,” he said. 

But even with an uphill battle ahead, Lewis said, Heard choosing to appeal would send a message that she’s “not giving up, that she’s continuing to fight.”