Judge Kahn: Sorry for being late… Before we get started today, does anyone of the jury have any pressing civics questions for us today?
Juror: How are the elevators working this morning?
Ellen Pao weathered her cross examination, but it was stormy seas. Through 10-plus hours of questioning she managed to smile and hold the line, blocking blows with practiced “I don’t knows” and “I can’t remembers”. In all these she came off just as shrewd, and cagey, as her former male partners have on the stand.
That wasn’t easy. Pao was the first witness to go head-to-head with defense attorney Lynne Hermle. The matchup was years in the making and didn’t disappoint, Hermle masterfully manipulating pieces in the four-dimensional chess game between the facts, the jury, the law and, notably in this case, the wider audience of the tweets and live blogs emanating from the room at each decisive point. Hermle established herself as a fucking badass woman in a room containing many.
During Pao’s testimony on Monday through Wednesday, the courtroom was packed with media, but by Thursday had dropped off notably, reduced to three tight knots of reporters clustered near the charging stations.
The press, especially the tech press, hover just off-screen in the events related in testimony, a constant presence like Pigpen’s flies. Pao’s lunch meetings with Kara Swisher and Sarah McBride of Reuters – which took place in 2012 shortly after Pao announced her termination on Quora and her complaint was mysteriously leaked to the press – are now a matter of the court record.
* * *
Hermle: You know what the First Amendment says, don’t you Miss Pao?
Hermle: You know what the First Amendment says?
Hermle: People have the right to speak publicly about their opinions, right?
Hermle: And that would include John Doerr?
Hermle: You understand generally that people have a right to express their opinions and that your leaving the firm is a matter of extreme public interest?
Hermle: And since the time you put forward the details of your complaint you understood the media would be all over this?
Pao: No, it was when it was leaked to the press.
Hermle: Who did that?
Pao: I don’t know
Hermle: How do you know it happened?
Pao: I don’t know
Hermle: You had lunch with Sarah McBride?
Pao: Yes, she is a friend
Hermle: And she just happens to be a journalist who was reporting on your case?
Hermle: You had lunch with Kara Swisher who has been reporting on your lawsuit?
Pao: Yes, I consider her a friend as well.
* * * *
After a tour through Pao’s texts, emails and accounts of her in-person conversations, Hermle ended questioning on Wednesday poised to deliver a killer blow in her third act the next morning. A gun was laid on the table but has yet to discharge – an unfavorable ruling by Judge Harold Kahn (who, on Thursday, had been late to court having got stuck in the elevator) kept Hermle from bringing up Pao’s financial struggles and those of her husband, Buddy Fletcher. As a result, Thursday’s final act ended with more whimper than bang.
Hermle: We heard yesterday about John Doerr talking to you about resenting your coworkers during your self review discussion. Did you create a chart of what you resented about Wen Hsieh, Ajit Nazre and John Doerr?
Pao: I may have
Hermle: And you kept that chart on your computer at Kleiner Perkins, didn’t you?
Pao: I don’t remember
Hermle [Offering exhibit] Please tell us if this is the resentment chart?
Pao: It is
Hermle: And in the box where it says ‘resentment’, these are the things you resented about Wen Hsieh, Ajit Nazre and John Doerr.
Therese Lawless: Objection for privacy reasons, Your Honor, this document violates third parties’ request for redaction
Hermle: It goes to the ‘female chip on the shoulder your honor’
Judge Harold Kahn: I will admit the exhibit with the note that the portion regarding third parties is redacted
Hermle: This was a chart of people including people you worked with at Kleiner Perkins and your feelings about them?
Pao: These were people I was working with and I was working through the feelings I had about them, this was just my way of working through that and leaving it behind me.
[The exhibit is displayed on screen, with columns reading “Person: Resentment :What Part of My Life It Affected: My Feelings: My Part”]
Friday morning was given over to the jury’s questions for Pao. If nothing else, the wrinkle introduced by Judge Kahn’s rare practice of soliciting jury questions for every witness has made it plain that this jury is paying close attention. Their questions for Pao invoked specific emails and conversations, and sought Pao’s reasoning for her decisions at key intervals in the seven-year timespan covered in her complaint.
Kahn: [On behalf of the jury]: You said that in asking for eight figures [in settlement] that although you did not use the word punish it was your intent to punish Kleiner Perkins. Why would you try to punish them yourself in this way, rather than just allowing the lawsuit to go forth?
Pao: Litigation is painful and difficult. This has been going on for three years now, and all my information is now public. This is not a good process for resolving disputes. I wanted something meaningful to avoid all this, so women wouldn’t feel at risk and treated unfairly, I wanted [Kleiner Perkins] to say we take responsibility for creating a culture that is fair and where women are treated equally, and I couldn’t get them to do that.
Ellen Pao’s time on the witness stand has come to a close, and the respective storytelling abilities of both teams of lawyers have left the jury with a difficult assessment. And it’s an assessment that allows no more subtlety than most debates involving gender and the tech industry: Was Pao the social conscience of a firm stocked with manipulative jerks – a canary in the VC coalmine? Or was she an avaricious and petty bad apple among a league of high-minded and distinguished dealmakers?
The case continues.