“Hardly Fifty Shades of Leonard”: Dispatches from the Pao vs Kleiner courtroom, Pt 6

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lc5_0614f_2Final arguments in the case of Ellen Pao v. Kleiner will likely be heard around the middle of next week, or so Defense Attorney Jessica Perry tells me. In the meantime, following Pao’s testimony last week, the courtroom proceedings have been humming along nicely, with lots of new faces but few fresh bombshells.

In the past few days, the defense has churned its way through three expert witnesses, three senior Kleiner partners, and one good friend of the firm, a man called Jody Gessow who is easily identified as a non-venture capitalist by the presence of a tie around his neck. Gessow’s testimony was short but interesting, him having been aboard Ted Schlein’s jet in 2011 when, Pao has alleged, Schlein, Gessow and Dan Rosensweig of Chegg discussed off-color topics in her discomfited presence. On Wednesday, lawyers for Kleiner asked Gessow about that flight.

Gessow’s version of the events makes the whole thing sound decidedly PG-13, a version that mostly aligns with that of Schlein, who testified earlier in the trial. Schlein, however, had admitted that Rosensweig had talked about “cute” Eastern European staff at a favored NYC members’ club, which he chalked up to Rosensweig’s being “boisterous” and “a funny guy.” Gessow begged to differ. Not only did that conversation never happen, but Rosensweig isn’t boisterous. As for the remainder of the conversation, the men were talking primarily about their spouses and children, not their sexual preferences. Sure, Gessow may have been taking a cocktail of painkillers at the time for a nerve condition, and may have “tasted” the wine the other men were drinking, but when it comes to what was discussed on the flight, he has crystal-clear recollection.

As with many of Pao’s allegations, those concerning the events of that trip are subject to wholesale reinterpretation by the defense, since nothing was captured on paper and nothing brought forward by Pao at the time. This has allowed the firm’s partners to morph from good ol’ boys to boyscouts in front of the jury’s eyes, under the able guidance of Kleiner attorneys Lynne Hermle and Jessica Perry.

Jessica Perry: Was there any discussion of Playboy Mansion during the flight?

Gessow: Yes. I’m a private equity investor, and the Playboy company had traded down basically to the value of its real estate. I’d been following their business for years –one of the private equity companies I was familiar with had purchased Playboy Enterprises, and one of the passengers had visited the Playboy Mansion around that time.

Perry: Was there any discussion of the Playboy Mansion beyond as a business deal?

Gessow: It was not even a business deal, just business interest because of how low its value had fallen? 

Perry: Was there discussion of Victoria’s Secret?

Gessow: Dan [Rosensweig] had maybe talked about going to Fashion Week and bringing his daughter.

Perry: was there any discussion of the model’s bodies?

Gessow: No.

Perry: What was discussed on the plane?

Gessow: A lot of it was about family and kids. Regarding fashion week, I was talking about one of my daughters who was interested in it, and how she was looking for a job at the time, and also about my son who is a Navy Seal and was in training at the time.

Between testimonies, I’ve been taking time to catch up on my reading. Specifically, I’ve now read all 150 poems contained in the Book of Longing, written by Leonard Cohen and presented as a Valentine’s Day gift to Ellen Pao by Kleiner Partner, Randy Komisar.

Like most of Cohen’s work, they are a frank portrait of one man’s traffic with the Sacred and the Profane, with plenty of odes to each. The poems and Cohen’s line drawings have been the subject of some debate in the case. Pao contends the gift was sexually suggestive and inappropriate, due to Cohen’s sometimes raunchy verse and sketches of naked women.

Fortunately, Komisar took to the stand on Tuesday to clear up any confusion. His wife, his “trusted advisor on these things and a big fan of Leonard Cohen”, had bought the book on Amazon. He hadn’t read it. His reason for giving Pao a Valentine’s gift was Pao’s own fault, really, because she had given him unreciprocated Christmas presents and “she was quick to take slight.”

Lynne Hermle: Can you read the inscription there?

Randy Komisar: It’s dated February 14, 2007 and says ‘To Ellen, a taste of Dharma Bum [sic] to remind that the Dharma breathes in and out and is nothing special. Best, Randy.’

Hermle: I learn things all the time. What is Dharma Bum?

Komisar: It is the name of a book by Jack Kerouac … it’s his fictionalized account of his friendship with poet Gary Snyder. It introduced his readers to Buddhism.

Hermle: what is the Dharma?

Komisar: The Dharma is the theory of truth, the philosophy of life in Buddhism.

Hermle: What does it mean “The dharma breathes in and out and is nothing special?”

Komisar: Well, it can be off-putting to think about things as holy or precious. The Dharma is every day, it is breathing in and out. For somebody new to buddhism, it’s simple, it’s very accessible.

Tom Gallagher is the senior member of San Francisco’s “Conspiracy of Beards,” an a cappella men’s choir that sings only Leonard Cohen songs. Would Gallagher consider the book to be an inappropriate gift from one venture capitalist to another?

“I’m sure venture capitalists have some useful function in society, but I don’t think they are as important as I gather they think they are,” he told me by phone. “I’m just not that interested in the contretemps of their office culture.”

Still, he was able to explain that “the woman in the little black dress across the room is as important [to Cohen] as the meaning of life, and he’s never far from that.”

For more elucidation I turned to San Francisco-based writer and rock historian Sylvie Simmons, who published a biography of Cohen in 2012. Simmons told me by email that:

 “My ears did perk up when Ms. Pao brought poetry, in particular Leonard Cohen’s, into the argument – an upmarket Twinkie defense, or in this case attack… It’s not a secret that Cohen writes about women, often naked women, in his poetry and songs, and there’s drawings of a few as well, but Book of Longing is hardly Fifty Shades of Leonard.”

Finally, with my deadline looming, I tried to get in touch with Leonard Cohen himself. I was hoping Cohen might tell me that his poems were far too raunchy for the workplace and that they constitute a grossly inappropriate gift for one venture capitalist to bestow upon another.

I’m also keen to know if Cohen has been following the trial; if he knows more about Pao than Pao knows about him. Last week, Hermle asked Pao whether she knew that Cohen wrote the song “Hallelujah”, or that the Book of Longing was a “highly acclaimed book of poetry.” Pao said she did not.

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The Chart of Resentment: Dispatches from the Pao vs Kleiner courtroom, Pt 5

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elevators

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?

Pao: Yes

Hermle: You know what the First Amendment says?

Pao: Yes

Hermle: People have the right to speak publicly about their opinions, right?

Pao: Yes

Hermle: And that would include John Doerr?

Pao: Yes

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?

Pao: Yes

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?

Pao: Yes

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.

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