Andrea Burkhart has made a "must see" video about Ms. Heard's interlocutory appeal. Please take the time to watch the video. Many thanks to Ms. Burkhart & @colonelkurtz99 for hosting the video.
Ms. Burkhart says the 8/30 court order by Judge Azcarate is Ms. Heard seeking an argument for an interlocutory appeal, the hearing on this matter is scheduled for 10/12/21.
"The standard for a interlocutory appeal is pretty demanding."
8/30 Court Order: fairfaxcounty.gov/circuit/sites/…
The 10/12/21 hearing will be an argument for an interlocutory appeal. Mr. Depp via Mr. Chew is objecting to the hearing. Judge Azcarate has set a briefing schedule for Ms. Heard/Ms. Bredehoft & Mr. Depp/Mr. Chew.
Judge Azcarate may not rule on the matter 10/12/21.
Judge Azcarate may decide on this matter, as she did in Ms. Heard's Plea in Bar, nearly a month after the hearing. It will either be in a Memorandum decision or a written Order.
So what will Ms. Heard/Ms. Bredehoft have to show to get an interlocutory appeal?
Interlocutory appeal is not typical. Interlocutory, means it is being done before the entire case is resolved via the Jury trial Mr. Depp's requested & the Jury's decision in the case. Normally appeals are filed after the trial.
This interlocutory appeal is being filed w/ regard to Judge Azcarate's 8/17/21 Opinion Letter denying Ms. Heard's 3rd Plea in Bar (dismissal attempt); because Ms. Heard/Ms. Bredehoft are arguing the decision is important enough that it needs to be decided prior to trial.
The standard for a interlocutory appeal in Virginia, according to Virginia Civil Code:
Ms. Heard/Ms. Bredehoft have to first ask Judge Azcarate to certify her 8/17 Plea in Bar ruling as appropriate for interlocutory appeal.
If Ms. Heard/Ms. Bredehoft get certification the 8/17 Plea in Bar ruling is appropriate for interlocutory appeal, she then has to file a petition in the Virginia Court of Appeals requesting they review Judge Azcarate's certification. The Virginia Court of Appeals, then ...
get to decide independently if they agree it has merit or not & then exercise their discretion to decide whether they want to take up the matter or not. Interlocutory appeals are always discretionary; there are very few limited exceptions to that. It's almost never that ...
the Court of Appeals has to take up a matter. The standard for it to be appropriate requires Ms. Heard/Ms. Bredehoft to show 4 standards in order to get Judge Azcarate's certification.
Judge Azcarate's ruling involves a question of law & (1) there is a substantial ground for ...
a difference of opinion; (2) there is no clear, controlling precedent on point in the decisions of the Supreme Court of Virginia or the Court of Appeals of Virginia; (3) determination of the issue will be dispositive of a material aspect of the proceeding currently pending ...
before the Court; (4) it is in the parties' best interest to seek an interlocutory appeal.
The third standard is the only one that is a given. It was a dispositive Motion b/c if Judge Azcarate had granted Ms. Heard/Ms. Bredehoft's Plea in Bar, it would have precluded a trial ...
in Virginia, basically adopting Mr. Justice Nicol's 11/2/20 ruling & the ruling of the UK Court of Appeals in March 2021; that it couldn't be litigated a 2nd time in Virginia. Judge Azcarate in her 8/17/21 Opinion Letter denied Ms. Heard/Ms. Bredehoft's Plea in Bar, meaning ...
the defamation lawsuit will proceed to trial. However, b/c Judge Azcarate's 8/17/21 Opinion Letter could have terminated the case, if she'd granted Ms. Heard/Ms. Bredehoft's Plea in Bar, the third element is easily met.
The 4th standard, that it is in the parties' best ...
interest is a matter of personal opinion. On the one hand, Mr. Depp should be entitled to be able to have a Jury trial, present his case & have the Court rule on the merits of his evidence. On the other hand, Court's don't want to have unnecessary trials. The point is it ...
saves everyone a lot of expense & inconvenience, if the case is likely to be overturned on appeal. So this boils down to the merits of Ms. Heard/Ms. Bredehoft's request for an interlocutory appeal. If it looks like a strong case that the ruling is going to be reversed on ...
appeal, then it would be in the parties' interest to proceed w/ an interlocutory appeal & deal with the issue prior to trial.
Where Ms. Heard/Ms. Bredehoft will have trouble is with the first two standards; that there is a substantial ground for difference of opinion & that ...
there is no clear controlling precedent on the issue.
This goes back to the merits of Ms. Heard/Ms.
Bredehoft's request to dismiss the case & Judge Azcarate's ruling which Ms. Burkhart explained in her previous video:
According to Ms. Burkhart, there is not a lot of ground for difference of opinion. Ms. Heard/Ms. Bredehoft struggled to find any case law that would support her position. Judge Azcarate noted, in her 8/17/21 Opinion Letter, how it was peculiar of Ms. Heard/Ms. Bredehoft ...
to raise the res judicata issue b/c the subject matter of the Virginia matter was different than the subject matter of the UK lawsuit; they involved different publications, different statements, different claims by different parties. The fact she had to reach to even ...
come up w/ a "misguided" argument, doesn't bode well for her to be able to show that this an issue where people will have a difference of opinion. Granted, Judge Azcarate did not find Ms. Heard/Ms. Bredehoft's Plea in Bar sanctionable in her 8/17/21 Opinion Letter; she didn't ...
think it was completely lacking in merit as to be frivolous. But, that said, it was clear from the tone & the substance of Judge Azcarate's 8/17/21 Opinion Letter, she thought the law was definitive. In fact, she stated it wasn't an instance of first impression, b/ an issue ...
of stare decisis (the policy of courts to abide by or adhere to principles established by decisions in earlier cases; what has already been decided will continue to apply in the future). In this case all of the case law pointed in just one direction & that was in favor of ...
Mr. Depp/Mr. Chew's position.
There is a similar issue w/ the 2nd standard; that's there's really no clear controlling precedent on point. This goes directly to Judge Azcarate's statement about stare decisis. There is an abundance of law on collateral estoppel, on mutuality....
This is not a novel issue Ms. Heard/Ms. Bredehoft was trying to raise; she just wanted the Court to decide that those were bad rulings & allow her to preclude the Virginia trial. But, that's not the same thing as there isn't case law on the issue....
TBC
There is an abundance of case law on the issue. Ms. Heard/ Ms. Bredehoft just didn't like the compelled the outcome Judge Azcarate denied her Plea in Bar.
Ms. Burkhart, doesn't believe Ms. Heard/Ms. Bredehoft is likely to be able to meet the first two standards & b/c of that ...
it is highly unlikely that Judge Azcarate is going to grant the certification. If Judge Azcarate does not grant the certification then that's the end it. Ms. Heard/Ms. Bredehoft will have to wait until the trial concludes/verdict is in to raise this issue on a final appeal....
But, at that point she wouldn't have any basis to go forward to the Court of Appeals prior to trial.
If Ms. Heard/Ms. Bredehoft did get the certification from Judge Azcarate after the 10/12/21 hearing, then the statute does allow for Judge Azcarate or the Court of Appeals ...
to stay the trial, if they think it is prudent to do so while they take up the issue. Barring a petition to Court of Appeals that's not going to be on the table.
This hearing 10/12/21 is all about Judge Azcarate's certification. It's the first step in that process & first ...
hurdle that Ms. Heard/Ms. Bredehoft would have to clear to get the stay, to get the interlocutory appeal & stop the discovery process that is proving to be so damaging to her.
Ms. Burkhart in closing mentions b/c this isn't really complicated legal question, it ...
will be fairly straightforward in terms of whether these standards are met or not. She says, she expects Judge Azcarate will make her decision rather quickly; it could be on the day of the hearing 10/12/21, but regardless she expects she will have a quick decision....
Ms. Burkhart believes it is really unlikely to go forward. She doesn't believe Ms. Heard/Ms. Bredehoft will clear this first hurdle 10/12/21. But, even if Judge Azcarate her the full benefit of the doubt she expects the Court of Appeals would look at it w/ raised eyebrows.
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