Ed Williams QC is a barrister at Cloisters Chambers, and co-founder and director of Assurety, a witness preparation consultancy.
In 2020, Depp lost his defamation case against the Sun newspaper, a British tabloid who had made domestic abuse allegations against him. Fast forward two years and this time Depp has succeeded in a second defamation claim, this time in the U.S. against his ex-wife and fellow actor, Amber Heard.
Watching the U.S. trial unfold live on TV, it is clear what both experienced as a witness in the English court system is very different to what went on in Virginia.
First, in the U.S. trial, the witnesses were able to give their own version of events through friendly questions by their legal team before they are then cross-examined. Depp certainly took advantage of this “friendly” early questioning by giving long answers and statements about his upbringing.
One answer stuck out in particular: it was about being brought up by an overbearing mother, which he then contrasted with the behaviour of his dignified father (in effect making a point about Heard, without mentioning her name).
That is very different to how it was done in England, where the witness evidence was given in the form of a written witness statement which was then sworn as being true. This meant that, apart from the occasional supplemental questions from their English barristers, Heard and Depp were pitched straight into hostile cross-examination. The effect of this is that the witnesses in the English trial were not able to get “warmed up” to the same degree as they are in Virginia.
Another key difference is that the U.S. allows witnesses to be coached on what they are going to say. Such coaching is forbidden in the English system: you cannot “coach, practice or rehearse” a witness’s evidence. This means that, in the U.S., witnesses often come across as heavily choreographed and rehearsed. It is easy to remember your practised answers when being asked about them by your own lawyer giving your answers chronologically as you would when telling a story. It is much harder under the pressure of cross-examination to do the same thing, particularly when questions can be unexpected and in a different order to your story.
In the English High Court, the person making the findings of fact was a single person, a High Court Judge. High Court judges have seen thousands of witnesses first in practice then as professional judges: they know what good and bad looks like, and generally they are pretty good at working out who is telling the truth. In Virginia that was for the jury. This means that the people that “judged” Heard and Depp were completely new to the business of weighing witness credibility.
Being generous, this courtroom innocence leads to a lack of cynicism and an openness to believe what they are being told. The downside to this openness is a blindness and naivety to the fact they might be being manipulated by a well-trained witness: a risk amplified when that witness is a professional actor.
But perhaps the biggest difference between the two systems, apart from the incessant and disruptive “objections” by opposing U.S. advocates, is that one is televised, and the other is not.
The U.S. trial was prime time clickbait for YouTube and other social media channels: millions tuned in daily to watch the toxic drama unfold. Yet the English trial was hidden away in a dark Dickensian court room in the Royal Courts of Justice with limited space for the public to sit and watch (even more limited given the social distancing requirements of a COVID lockdown in England). This results in the U.S., witnesses, particularly high-profile ones, having two audiences in mind, the judge/jury and wider public opinion.
The court of public opinion is more distracted, certainly more interested in salaciousness than truth, and highly polarised. In the Depp v Heard trial this meant that both sides had a large sympathetic and forgiving fan base.
In terms of influencing the court of public opinion the key is to make sure you have more of those than the other side, as Depp clearly did. Answers are therefore given live in Court that are then spun by PR agencies to your tribe of supporters and to the media generally.
But the key question becomes a non-court one.
Through your evidence, can you energise your fanbase to continue to turn out in their thousands to watch your latest movie, whatever the outcome of your court case?
In the end isn’t that the point? Winning the trial is important, but the key part of it is about persuading your audience, including producers and directors, that they can trust you again…
