“I was the only hack in the room – and therefore the world – producing real time trial updates on social media. As my mentions started spinning like fruit machine reels, I plugged away, trying to give a flavour of what it was like to be sitting in this surreal environment, reporting what I soon realised was going to be a gripping case.”

The idea of live-tweeting a trial on a professional basis, funded by subscribers, is not a new one. It was what enabled Peter Jukes to cover the phone-hacking trials for his book Beyond Contempt, back in 2014. But as a business model it is still relatively under-exploited.

Twitter has been with us for a while, though who knows for how much longer; X marks the spot of its possible demise. But the essence of what the judicial guidance still rather prissily refers to as “micro-blogging” and “text-based communications” will remain in one form or another for a while to come. What interests me is how it can be harnessed as a platform of open justice.

The current practice guidance requires anyone not accredited as a journalist to seek the court’s permission first, but this requirement is probably more honoured in the breach. Nick Wallis would in any event qualify as an accredited journalist, having worked for the BBC and as a freelance writer and broadcaster, and has written and broadcasted extensively about the Post Office scandal.

This book concerns the epic court battles between film stars Johnny Depp and his ex-wife Amber Heard which took place in courts first in England and then in America. I am not that interested in who said what to whom, the spilt wine and broken glass, the flung phones and embedded shit of a romantic relationship gone grotesquely sour. Both cases involve a finding of facts, the conclusions of which appear to have been different. In America the finder of fact was a jury, in England a judge; and much of the legal commentary on the cases focused on the different approaches of the two common law systems to what appeared to be fundamentally the same factual dispute.

What interests me, as a legal blogger and commentator, is the story about the story – the nuts and bolts of someone attending court as an observer, a blogger, not your usual Fleet St type journo, but someone to whom court staff direct their all too customary suspicion of non-insiders.

The English case

In England the proceedings were brought by Depp against News Group Newspapers, claiming that his description in an article in The Sun as a “wife-beater” was defamatory. The case came before Nicol J, sitting in the Queen’s Bench Division of the High Court, in the summer of 2020, just as the UK was emerging from the first covid lockdown. The normally bustling Royal Courts of Justice were, says Wallis, “eerily quiet”.

“To aid social distancing, five separate courts had been set aside for Depp v NGN. The main Court 13 was for the judge, the protagonists and the important lawyers. An overspill court was handed to less important lawyers. Two (initially under-populated) courts were given to spectators and one court in the completely separate West Green Wing was reserved for the perennial dirt on the legal system’s shoe – reporters.”

Whether reporters are really so regarded is open to question. In some ways they are favoured over other public observers. But in other respects, the obstacles seem wearily familiar:

“I emailed a request to the High Court press office asking if I could attend Depp v NGN as an independent freelancer, but I did not receive a response.”

Instead, he makes sure to get there early and is let in by an usher too busy and harassed to check the list. From Court 38 the assembled reporters could watch the main proceedings in Court 13 via closed-circuit TV relay. “The camera positions were not ideal and the sound quality was poor,” he complains. “We were going to have to make the best of it.”

Having set up a “tip-jar” to secure funding, Wallis was gratified to see how quickly his following “exploded” as soon as he began to live tweet the proceedings. That was partly because, owing to the pandemic, no US journalists had been let into the country to cover the case, and his fellow hacks were mostly saving their copy for their own publications.

The next obstacle was to get access to documents. Thanks to an application made by one of the PA Media reporters, Sam Tobin, they are able to obtain copies of some unused witness statements, but then Wallis himself makes his own application for access to the daily court transcripts (presumably commissioned by the parties’ legal teams) to ensure his coverage is accurate. This proves less than straightforward. “After three days of asking the parties politely, I took matters into my own hands.” Having drafted an application, Wallis emails all the lawyers in advance and then makes his way to Court 13 to make sure it goes before the judge.

“The usher, who appeared to view my presence outside Court 13 as some kind of security risk, claimed fulfilling my request was impossible. He instead told me that once the court was in session he would pass my application to the judge’s clerk who could hand it up to the judge when she saw fit. I explained this would be unsatisfactory. The usher eyed me suspiciously and, holding my application, disappeared into the court. A couple of minutes later, the smiling and helpful clerk came out to tell me she had passed everything on to the judge, so he would definitely see it before proceedings began. I relaxed and sat back down again.”

The usher still refuses to allow Wallis into court, but luckily the judge deals with the matter by consent, neither party objecting, so no formal order is required. “A magic door had just opened. From then on I was given daily transcripts of proceedings.” Wallis is even put on the circulation list when the judgment is delivered remotely, enabling him to be first to tweet the (to many) surprise result.

The American case

An appeal in England fails even to get permission, but Depp effectively relitigates the claim, while Heard pursues a counterclaim, also for defamation, in the United States. The matter comes before Chief Judge Penney Azcarate in the Circuit Court of Fairfax County, Virginia, in February 2022. As this would be a civil trial, the rule prohibiting cameras in court in criminal cases involving sexual violence need not apply, and she decides to allow the case to be filmed – apparently on the ground that  it would obviate the need to have the place overrun with the world’s press.

But for those reporters who are in attendance, she prohibits the use of electronic devices. That means no live tweeting. The situation is thus almost a complete inversion of the way the London court was covered. Wallis notes that although the judge claims she has a responsibility to keep the court open to observers,

“The decision to allow cameras was therefore not taken in the interests of open justice. It was taken because the judge felt having a lot of journalists at her courthouse was somehow hazardous. As to whether it was fair that a woman should be forced to recount the detail of her alleged abuse in front of a live, worldwide audience, the judge shrugged: ‘I don’t see any good cause not to do it.’”

Given the ban on tweeting, this raises the question whether it was really worth Wallis flying over there and getting up at 4 am to queue outside the courthouse, just to be sure of getting one of the coveted wristbands he would need to gain access to the court. Having done so, however, he is gratified to find something generally not seen in UK courts: an enormous canteen where “I was introduced to the delights of American cuisine, including half-and-half, blondies and pork fritters”.

For the next few weeks he follows a gruelling routine beginning each day with the dawn queue for a wristband, spending the day in court hearing evidence, then doing interviews for his YouTube channel and podcast, and then writing up the day’s copy.

“The proxy war was over and I was once more back in a world of contradictory sworn narratives and inexplicable alternate realities.”

Rather than go over all the evidence afresh, Wallis deals with the evidence from both hearings in relation to each separate incident in turn, and then the nuts and bolts of reporting from the different courts in separate chapters. This worked well for me, as I could skim-read all the jaw-dropping and eye-rolling stuff and get onto the next bit about reporting challenges and open justice.

I was amused by Wallis’s comparison of the treatment of witnesses by advocates. “In the UK, unless a barrister states something which is factually untrue, or asks a blatantly leading question, their opposite number tends to let them get on with it.” But in the US, “It seemed no attorney was able to ask a question without their opposite number leaping up to object.” Every objection requires a judge’s ruling. (On one occasion, one of Heard’s attorneys got confused and managed to object to his own question.)

Eventually it all comes to an end, and on 1 June the jury comes back with its verdict. This time Depp is the winner, with Heard getting the consolation prize of a small counter-victory on defamation by Depp’s agent (or “personal consigliere” as Wallis describes him), Adam Waldman. ABC News interviewed one of the jurors, who said

“Depp was ‘more believable’ and ‘a little more real in terms of how he was responding to questions.’ It sounds like a lot turned on who was a better actor, and Depp, as I think most people would agree, is a better actor.”

An attorney whom Wallis spoke to may not have appreciated quite how ambiguous his endorsement of the result might sound to objective onlookers:

“I thought the verdict was a great validation of the jury system,’ he said. ‘The fact that the jury agreed with what appears to have been the public sentiment was a great reflection on the fact that the jury is made of people from the community. I’m glad that their view was the same as the community… I think it reflects well, quite honestly, on the United States.”

Wallis concludes with a bit of Wellesian voiceover, philosophising as the credits roll:

“However Depp and Heard try to pursue their careers, they will carry the baggage of their relationship and legal battles to their graves. Their psychodramas got caught up in the culture war, and the (checks Twitter) endless ongoing bunfight between antagonistic factions who will continue to target, abuse and harangue each other until the earth crashes into the sun.”

Meanwhile, Twitter itself appears to be crashing into the sun. But live text-based communications will continue in one form or another, via Threads, or Mastodon, or BlueSky, and bloggers will continue to find novel ways to support their coverage for as long as the courts remain open to observers and those observers are not regarded as too toxic or hazardous to accommodate.

So long and thanks for all the pork fritters?

Depp v Heard: the unreal story, by Nick Wallis (Bath Publishing, £12.99).

This post first appeared on the Court and Tribunal Observers’ Network and is reproduced here with permission.