Remote litigation: Why Johnny Depp went to a Virginia court to get Heard

After nearly two months of courtroom battles, the trial of Depp v. Heard concluded with the jury finding both parties liable for defamation. It awarded $10 million in compensatory damages to Johnny Depp and $2 million to Amber Heard. For those unfamiliar with the case, the actor, Depp, sued his ex-wife, actress Heard, for defamation arising from an op-ed Heard published in reference to alleged domestic abuse. In the op-ed, published in The Washington Post in late 2018, Heard described herself as a “public figure representing domestic abuse” and characterized her experience as representative of the #MeToo Movement. Although the op-ed does not mention Depp by name, Depp’s Complaint alleges that it “plainly” referenced the “purported victimization” by Heard’s former husband. In terms of economic damages, Depp claims that the uproar that followed led Disney to drop him from its Pirates of the Caribbean franchise, whose five films (so far) have generated over $4.5 billion in revenue worldwide.

The trial was noteworthy for several reasons. In the past, coverage of celebrity trials were dominated by conventional television and print reporting. But with the growth of social media, fans or supporters of Depp or Heard took to platforms such as TikTok, Instagram and Facebook to conduct a “meme war” on behalf of one party or the other. The Depp case involves significant allegations related to sexual abuse, mental health, and public defamation. Unfortunately, while a jury’s dispassionate deliberations can bring clarity and closure to contentious litigation, it may do little here to influence the millions of cursory, yet passionate, snap judgments that dominate social media exchanges.

For litigation attorneys, particularly those of us who work in Los Angeles, the trial was notable because of its venue. Both Depp and Heard are residents of California, yet the trial took place in Fairfax, Virginia. Because of California’s tough Anti-SLAPP statutes, Depp’s legal team likely calculated that it would be easier, and less risky, to advance a defamation claim in Virginia. They argued that venue was appropriate because (1) The Washington Post conducts much of its operations and maintains digital servers out of Virginia and (2) Heard wanted to use the op-ed to promote her latest film (Aquaman), which was playing in Virginia theaters at the time. Considering the reach of the film industry, it is unsurprising that litigation can force celebrity defendants far outside their home states. Yet, what happened to a celebrity like Heard may become more normative for others.

The dynamic growth in remote employment and “tele-commuting” across state lines has shifted the liability risks even for everyday Americans. The mere fact that one’s clients, colleagues, or patients are in another state, automatically creates a risk of being sued in that state. Amidst the pandemic, many people discovered that the dream of remote work can easily turn into a nightmarish reality of conflicting employment laws, tax regimes, and licensing requirements. But out-of-state litigation is a horror of a different magnitude, particularly for industries such as telehealth, where a dearth of legal precedent provides little clarity for how to resolve any number of potential lawsuits. From a technological point of view, there is no reason why a reputed specialist, living in Nevada, cannot consult with patients located in Nebraska or Vermont. Similarly, a patient who relocates from California to New York, may prefer the convenience and comfort of keeping a California-based therapist. But what happens in a medical malpractice suit? Different jurisdictions have different legal standards of care. Different states have different licensing requirements. Should substantive law follow the patient or provider’s location? Eventually, appellate level courts and state legislatures will work out specific roadmaps for remote-care related lawsuits, but that will still not reduce the travel inconvenience of out-of-state litigation. However, there is one solution to consider…

During the height of Covid-19, a California judge in an Alameda County Superior Court decided to try virtual civil jury trials to overcome an overwhelming backlog of cases. After 18 months and 20 trials, the jury is still out on the benefits and disadvantages of virtual court. With the growth of remote work, tele-commuting, and telehealth services, it is only a matter of time before litigants living in different states start saying: “I’ll see you in cyber court.”