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To get a sense of how mercilessly Ellen Pao’s testimony was excoriated this week, first you have to envision Lynne Hermle, the lead attorney representing Kleiner Perkins: picture Laura Linney from Primal Fear, but dripping with Paula Deen's Southern charm. (Hermle is actually from the Bay Area, but there's something unhurried and showy about her shtick.) As an employment lawyer for Orrick, she's defeated discrimination and sexual harassment claims against clients like IBM and AMD. Hermle is known around town for making her opponents throw up.
Pao, now the interim CEO of Reddit, is suing Kleiner, a well-known Silicon Valley venture capital firm, for gender discrimination. Pao claims she faced retaliation after a Kleiner partner named Ajit Nazre manipulated her into a brief affair. The complaint was filed in 2012, the same year Kleiner fired Nazre for sexually harassing another female investor. Hermle has been on the case since then, building towards this week’s cross-examination crescendo that spanned three days.
Hermle carries herself differently from the other lawyers in the room. When the attorneys confer in chambers, Pao’s lawyer Alan Exelrod shuffles back to the plaintiff’s table; Hermle walks out with a smile on her face for the jury to see, aware of all her angles. Exelrod and Therese Lawless (Pao’s co-counsel) rarely crack jokes, unless befuddled inquires like "What’s Tinder?" are intentionally amusing. Hermle, on the other hand, is in her element. While crossing the street outside San Francisco Superior Court, she told a photographer that he was the only one who made her look thinner.
Hermle relied on that easy rapport with the courtroom when she began slicing up Pao’s testimony on Tuesday afternoon. She had one goal: convince the jury that a highly educated woman running a massively popular site like Reddit is amateurish and amoral without coming off like a bully.
How could she convince the jury Pao is amateurish and amoral without coming off like a bully?
For the first two weeks of the trial, Kleiner partners described Pao as unimpressive, someone who was unable to own a room. But when she finally spoke this week, Pao proved herself to be wry and confident — remaining defiant against Hermle’s rhetorical tricks like ending questions with an accusatory "didn’t you Ms. Pao?" or adding a deferential "Thank you for correcting me, Ms. Pao," every time the plaintiff pointed out something she didn't know.
A couple minutes before court closed yesterday, Judge Harold Kahn received a sizable stack of papers with hand-written questions for Pao from the jury. It seems they've been watching the showdown between Hermle and Pao just as closely as the rest of us.
When the trial began three weeks ago, Hermle’s opening argument made the case that Pao could be lawfully fired for being unlikable. She set out to show that again during cross. But first, Hermle had to establish Pao’s culpability in her affair with Nazre. Pao was single at the time and thought Nazre was separated from his wife. This is where some of some of Hermle’s most over-the-top lines came from, like "You knew he was married with small children?" and "At the time you began your sexual relationship you were 36 years old?" to imply that Pao was too grown-up to fall for a predator. "You knew he was married with small children?"
Kleiner must feel as though its character is being assassinated as well, but there was something absurd about watching an investment firm, which had $7 billion under management the year that Pao departed, bring its power to bear over Nazre, a flawed employee any way you cut it. Pao claims she rebuffed Nazre’s unwanted advances before their consensual relationship. The earliest example she’s given was during a business trip to Germany where Nazre asked for her hotel room number. "Rather than telling him, ‘I’m not comfortable with that,’ you gave him somebody else’s room number?" Hermle asked. It seemed like a risky anecdote to recount considering that Nazre was fired after showing up in a bathrobe and slippers outside the hotel room of Trae Vassallo, another female partner.
Hermle had more tactical success with text messages and IMs that showed Pao did not make a clean break after she found out Nazre lied about still being married. Instead, she continued to contemplate a relationship with him, compliment him, and mock her colleagues in emails to him — all during the period where he was allegedly retaliating against her. There was no acknowledgement of the power imbalance between Pao and Nazre, who was a more respected investor and had two years seniority at the firm, as well as the backing of senior management. She made Pao seem less Devil Wears Prada and more Cruella de Vil
With that groundwork established, Hermle moved on to how Pao spoke about her co-workers without their knowledge, including Vassallo. It went from bad to operatic. The jury learned that Pao had made Vassallo cry. Pao also complained about another colleague, Wen Hsieh. (The two shared chief-of-staff duties, and Pao helped hire and train him. In 2011, Hsieh was promoted; Pao wasn’t.) Hsieh was taking up too much of their secretary’s time sending scans of Hsieh’s mom’s brain tumor to doctors. Pao also snapped at Carmen Yip, the secretary, because she was late translating for her landlord who got in a car accident. "It would be better for me if you could come to work on time," wrote Pao. In Hermle’s vision, Pao was less Devil Wears Prada and more Cruella de Vil.
The other plan of attack was chipping away at Pao’s experience. Witnesses established that Kleiner Perkins only promoted "thought leaders." So Hermle belittled Pao’s self-proclaimed "domain expertise" in areas like mobile development, pointing out that "extraordinary developments" in technology had taken place since Pao did brief consulting work with Danger Research, the startup that built the first feature phone, six years ago. The argument that Pao simply wasn’t qualified to become a senior partner has always been Kleiner’s most convincing line of defense, but overall more time was spent on her personality.
(1/2) starting list of #kpcb hermle’s dramatic phrasing in #ellenpao trial: 1. after announcing ~to the world~ you’d been terminated…
— Davey Alba (@daveyalba) March 13, 2015 And there were other weaknesses in Pao’s case — inconsistencies that Hermle exploited with vigor. Pao mentioned that partner Randy Komisar gave her "The Book of Longing," a collection of poetry by Leonard Cohen, on Valentine’s Day. It's plausible that Pao was sketched out by the gift, especially in the boys' club environment she has described, but with every new detail, it seemed to look more and more benign. Pao teased him about being a Buddhist, and the cover of the book mentioned that Cohen was a Buddhist. Plus, Pao and Komisar had exchanged gifts before. Hermle seized the opening with gusto, introducing props into evidence
Hermle seized the opening with gusto, introducing props into evidence including a copy of the book, the board game Abundance (a $300 gift Pao had given Komisar) still in its plastic wrapper, and a Buddha figurine, a "gag gift." Every once in awhile, Pao got in a jab back. The mini-Buddha was joke because Komisar broke with spiritual tradition by eating red meat. "Were you judgmental of him because of that," Hermle asked, swooping in to emphasize the Kleiner party line that Pao was dismissive. "No, I thought it was funny," Pao replied. The email threads Hermle pulled up were damning, but as long as you were on Pao’s good side, she seemed like a more fun pen pal than her co-workers.
Hermle has tried to prove 3 things about Pao: Her testimony is inconsistent. She disliked coworkers, had disdain for them & alienated them
— katie benner (@ktbenner) March 11, 2015
When Pao was being questioned by Lawless, her own attorney, she ended strong, depicting herself as someone who initially asked for $10 million in cash as a "meaningful number" to get Kleiner Perkins to change its way. Pao also claimed that Kleiner Perkins came up empty every time she tried to assert basic HR practices. But at each turn, Hermle countered, never missing a chance to point out an email that didn't ask for a copy of Kleiner's policy. Hermle stressed that Pao had "a very close relationship with John Doerr." If she wanted help, she could have asked.
And Hermle caught Pao on other inconsistencies, too, at one point asking her to explain an email exchange with a friend at Google about "selectively deleting" emails to prepare for discovery. That back-and-forth was one document in what seemed to be years of contingency planning in case she should ever sue, including what Hermle called a "resentment chart." Through Hermle’s lens, 100 notebooks filled with grievances sounded nefarious — or did it? Is there something inherently fishy about consulting lawyers and documenting slights, or are female employees entitled to be aggressive and self-serving about protecting their rights?
Hermle played up the theatrics to keep the attention of the packed courtroom. Her favorite flourish seemed to be playing from Pao's deposition tape from 2014 every time she contradicted herself. Perhaps to avoid seeing the video of herself pop-up on screen, Pao got into the habit of caving on the second or third follow-up question if Hermle pushed the issue with an "I may have said that." Sometimes, Pao would be made to read lines from her deposition instead, which she deliberately delivered in a slow and stilted manner, as if to say: Who's gonna check me, boo?
As if to say: Who's gonna check me, boo?
That and the steely look in Pao’s eye can seem either brave or petulant, depending on your perspective. We’ll see what the jury thinks this morning, but Hermle’s cross seemed to suffer from the same impossible expectations as the performance reviews that so much of the trial has focused on. Kleiner Perkins told Pao she was too quiet, but too dismissive at the same time. Hermle said she complained too much, but if she was truly retaliated against, then she would have complained more.
The "throwback sexism" at Kleiner Perkins seems like a relic from an earlier era, when women were wives and mothers first and professionals second — when a woman’s serious discrimination complaints could be discounted by painting her as, well, a bitch; when it was on the accuser, not the accused, to make things better. Neither side seems to have heard of the term "tone-policing" or "slut-shaming," giving Hermle a wide berth. What felt more modern was watching two formidable women play legal chess. As the days passed, Pao got quieter, pursing her lips more often and pausing longer before speaking into the mic, but did not lose her cool. Over and over, Hermle was telling Pao she was too exacting, too condescending, even as Hermle used those tactics — masterfully — on Pao.
