The Main Attraction: Dispatches from the Pao vs Kleiner courtroom, Pt 4


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Re/Code’s Kara Swisher, rebutting Pando’s “idiotic” claims about courtroom eating rules, March 6th

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“The court reporter noted that someone in the audience was eating. Court reporters need it to be as quiet as possible so they can hear what is spoken at trial… so please refrain from eating while we are on the record.”

– Judge Harold Kahn, to media and spectators, March 9th

In the first week or so of testimony in Pao vs Kleiner, there has been a lot of commentary on the personality and character of Ellen Pao. Kleiner partners have discussed her on the stand, and their private thoughts have been revealed through emails and performance reviews. The overall message from Kleiner: Pao was too quiet, and couldn’t “light up the room” or hold the floor confidently enough to be top flight VC. They even hired her a speech coach to address the issue.

That investment seems to have paid off, judging by Pao’s performance when she finally took the stand earlier today. She was poised, firm and, at times, even matter-of-fact. As her attorney guided her through the story of her first six years at Kleiner, she began to fill in the blank spaces of the shape of the alleged gender discrimination she experienced at the firm.

Plaintiff’s attorney Therese Lawless: Did you have an understanding as to whom was being considered for the board [of portfolio company RPX]?

Defense attorney Lynne Hermle: Objection, Hearsay.

Judge Kahn [to jury]: The following testimony can only be considered on the basis that it reveals the witness’ state of mind. You may continue Ms. Pao.

Pao: My understanding was Randy Komisar would be the board member

Lawless: Did you learn why that was?

Pao: Yes, I did.

Lawless: What did you learn?

Pao: I learned that because I was going on maternity leave, I wasn’t being considered for a board seat

Hermle: Lacks foundation, move to strike.

Judge Kahn: Overruled.

Lawless: Who did you learn that from?

Pao: Randy Komisar and John Doerr.

Pao’s testimony gave the jury by far the clearest telling of the allegations, presenting an autopsy for the death by a thousand cuts she was subjected to at Kleiner. Pao also gave the most comprehensive picture of just what exactly a junior partner at a prestigious venture capital firm does for work. They build a lot of relationships, make a lot of introductions, crunch a lot of numbers, occassionally lobby governments to pass favorable legislation, organize events, write senior partners’ speeches, presentations and op-eds and bank a lot of frequent flier miles.

According to Ellen Pao, what they don’t do is get much credit for that work.

Pao: Yes.There was one company called Twitter that I found very interesting, I had met with its CEO Jack Dorsey…

Lawless: Did you bring it up to Kleiner Perkins?

Pao: Yes, I tried to with Matt Murphy, he had been meeting with them a year earlier.

Lawless: Did you meet with Mr. Murphy to discuss Twittter?

Pao: Yes. I said that I knew he had looked at it previously, and that I thought we should take another look, that it was looking for more funding and thought we should get involved.

Lawless: Where was that company at in their funding, at the time?

Pao: They were still at a very early stage, they hadn’t raised much yet and I thought it was a great opportunity.

Lawless: What did Mr. Murphy say to you?

Pao: He said had looked at the company before but the team was not business-minded and couldn’t create a sustainable business, and that we should drop the conversation.

Lawless: Did you say anything else about it?

Pao: No.

Lawless: Did the company make any investment at that time?

Pao: No.

So far there is no single smoking gun to prove beyond all doubt that it was her femaleness that led to her treatment. Indeed, there was nothing in her testimony that we haven’t already heard about from others, but when assembled togethered and colored by the lived experience of the woman herself, it becomes easier to see the picture.

Lawless: What was the book?

Pao: It was the Book of Longing by Leonard Cohen

Lawless: And what was it that concerned you?

Pao: I thought it was inappropriate, it had drawings of naked women, poems about masturbation and older men longing for younger women, and [Randy Komisar] gave it to me for Valentine’s Day.

Lawless: Had you exchanged gifts with other Kleiner Perkins employees?

Pao: Yes

Lawless: Had you ever given Mr. Komisar any gifts?

Pao: Yes, two.

Lawless: Did you give the gifts on Valentine’s Day?

Pao: No. I gave him a small plastic buddha as a gag gift, because he was always talking about being a Buddhist, but he ate red meat which is not very Buddhist, and I gave him a board game from Cafe Gratitude.

Lawless: Was there anything else that concerned you with Mr. Komisar?

Pao: Yes, he invited me out to dinner and made it clear his wife was going to be out of town.

Lawless: What did you do?

Pao: I declined

Lawless: Why did that offer concern you?

Pao: Because of the fact that it was on a weekend and he made a very clear point of letting me know his wife was out of town.

Lawless: Did you ever talk to him about that?

Pao: No, I did not.

Ultimately, though, it is Pao’s performance under cross examination that will be more telling. Will she be able to keep all these pieces together, or will the defense succeed in picking them off, one by one, and reasserting their claims that she was unfit for promotion and “unpartnerlike” in comportment? Will she maintain her calm under fire?

One interesting piece of this puzzle-in-progress is the insight it gives into Pao’s reasons for bringing suit. Over the course of her employment at Kleiner, Pao says she felt the sting of humiliations and gender-based discomfort on several occassions, and brought these concerns to her superiors. At each step she was reassured that these things would be taken seriously, that something would be done, that she should press on, that solutions were forthcoming if only she follow guidance.

But when Kleiner partner Trae Vasallo told Pao of her alleged harassment by Nazre, and of three administrative assistants with similar complaints, Pao said she took it upon herself to organize the women to present their complaints about Kleiner in solidarity.

It was after hearing this claim that testimony was halted for the day. Tomorrow we can expect to hear the next part of the story: How Pao was the nail that stuck out, and how she was subsequently, if subtly, hammered down.

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Sign in San Francisco Superior Court