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Ellen Pao vs. Ellen Pao: who will the jury believe?

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A tale of two Ellens

Justin Sullivan/Getty Images

The most excruciating moments in the last leg of the gender discrimination trial against Kleiner Perkins happened Tuesday afternoon when Lynne Hermle, Kleiner’s formidable attorney, walked away from the podium to deliver parts of her summation a few feet closer to Ellen Pao. Outside the courtroom, Pao seems light-hearted, impish even. In the elevator last week, a reporter loudly kvetched about sitting through the month-long trial, and Pao piped up: "It’ll be over soon!" From the plaintiff’s table, however, Pao can be inscrutable.

"Plays it close to the vest" was a critique in one of Pao's performance reviews, and Hermle has quoted it to the jury a number of times. (Like "aggressive," when applied to Pao, Kleiner Perkins meant it as a ding.) But with deliberations imminent, Pao seemed to want to telegraph her frustration with Hermle’s version of events, shaking her head and typing in intense bursts on her MacBook as the defense attorney argued that her lawsuit wasn’t about being held back by the boys' club at Kleiner Perkins; it was about "a huge payout for Team Ellen."

Sometimes, Pao took the opposite tack. When Hermle said the infamous porn plane incident was unlikely because Pao did not complain about it in her "hundreds of notebooks," Pao half-smiled and whispered to both of her lawyers, Alan Exelrod and Therese Lawless, "There was a note."

"It’ll be over soon!"

Around 200 people had packed the courtroom to hear the start of closing arguments. The normally chilly room was so stuffed that clerks had to spray air freshener to combat the body heat and the attendants' odors. It’s not clear how many of those bodies could see Pao’s face, but the jury had a clear view. The next day, they began deliberating.

Part of the reason that interaction seemed so tense was because even now, five weeks into the trial — with glaring instances of double standards and implicit bias — it’s still possible to be swayed in either direction, anecdote to anecdote or performance review to 100,000 other performance reviews. That’s how it went during the day and a half of closing arguments. Pao’s lawyer Alan Exelrod was the most sure-footed he’s been — throwing in some John Grisham gravitas for dramatic flair.

No longer tied down to individual testimony, both sides tried to spin a coherent narrative arc — Ellen Pao the entitled vs. Ellen Pao the capable crusader — tying it back to specific questions on the jury’s verdict form (except for Lawless, who went full Sheryl Sandberg during her rebuttal).

Both sides tried to spin a coherent narrative arc

Drawing that through-line back to the questions is vital. In the public imagination, the case has morphed into a referendum on sexism in venture capital where only 6 percent of investors are women. But inside the San Francisco Superior Court this week, the trial’s focus has sharpened and the timespan has narrowed. In the seven-page verdict form, the questions are limited to claims of gender discrimination and retaliation related exclusively to Pao not being promoted to senior partner in 2012, while three of her male colleagues were, and then being fired after filing this suit. The section about her retaliation claim, for example, asks only if "Ms. Pao’s conversations in December 2011 and/or her January 4th, 2012 memorandum" (the first times she explicitly mentioned gender bias) were a "substantial motivating reason" that she was not promoted. Meanwhile in the past few weeks, the jury has been decoding documents as far back as her offer letter in 2005.

The scope of the jury's task may be streamlined, but pertinent details and anecdotes were still hard to pin down. Even into the final hour of the rebuttal, it was still unclear whether Trae Vassallo, another female partner, was only promoted because of pressure from Pao’s lawsuit. Vassallo had also complained about sexual harassment during the same time period and was initially told she would not advance. Hermle said (repeatedly) that Vassallo was asked to get more operating experience; unlike Pao she took the feedback and ran with it and proved herself worthy for promotion. No matter why she was ultimately promoted, Vassallo and the three men signed the contract at the same time. (The delay in signing paperwork has been quite fortuitous for Kleiner Perkins!)

The motivation for Vassallo’s promotion is the kind of detail that could have backed up Pao's claim that Kleiner suffered from a culture of discrimination. Institutionalized bias doesn’t manifest itself in ways that can be neatly graphed on a timeline, but that also wasn’t one of the questions. Under these foggy conditions, the jury may end up leaning on which vision of Ellen Pao they believe.

On Tuesday and Wednesday, Hermle argued persuasively that Kleiner Perkins was merely a competitive playing field, not biased. Pao’s close relationship with billionaire John Doerr, Kleiner’s father figure and Pao’s mentor, gave her an advantage at the firm. Pao knew the other partners thought she wasn’t a team player. They wanted her to get more "thought leadership." Unlike the male colleagues who were promoted, said Hermle, Pao didn’t think she needed to change. It was only when Pao realized that she was going to be fired that she retrofitted gender discrimination onto past critiques.

They wanted her to get more "thought leadership."

Hermle also had an armada of dramatic visual aids. The most evocative slide had to be "Pao’s Numerous Conflicts: What Is the Common Denominator?" She began the slide with an unflattering picture of Pao — the common denominator — and then listed former co-workers with whom Pao allegedly had beef. As Hermle said their names, avatars popped up encircling Pao’s headshot. The many-headed image started to look like a Hindu deity.

Pop-ups were the defense team’s specialty. On slides like "Good Partner?" new quotes would appear as they were read aloud, like snippets of movie reviews at the end of a trailer.

Exelrod, on the other hand, used clipart to illustrate a feather on the scales of justice and later flashed the verdict form on screen with the word "yes" highlighted to indicate where the jury should vote "yes." Unfortunately for Kleiner, Exelrod chose summations to hit his rhetorical stride. Exelrod has eyebrows like an owl with the ends sticking up: an acute accent on the left and a grave accent on the right. He is not as dazzling as Hermle can be. When she goes over the top, it’s like kitschy theater. (She referred to Professor Gompers, one of her expert witnesses, as "the true and accomplished scholar dismissed and demeaned as a cheerleader for the venture capital community," like we were in Parliament.) When Exelrod emphasizes a point, everyone is confused as to why he started yelling. But his conclusions were forceful: "Ellen Pao drove the returns, the men received the promotions," he said. "Men were judged by one standard and women by another."

Pao is seeking $16 million in compensatory damages for lost wages, as well as punitive damages, which could be as high as $144 million. In order for the jury to vote yes on that, however, they have to decide that Kleiner acted with malice, fraud, or oppression. So Exelrod said "fraud" and "fraudulent" like it was going out of style. It was all in reference to the fact that two names of partners were removed as contributors from a performance review that initially called for her to be pushed out. One of the names was Ajit Nazre, a partner who pressured Pao into a consensual affair was later fired for sexually harassing Vassallo, and Chi-Hua Chien, not exactly Pao's biggest fan. "It misrepresented information. It was simply a fraudulent review, and John Doerr knew it," he said, referencing Doerr’s insistence that they rethink it.

Both Exelrod and Lawless emphasized that Pao could not have been a poor performer (Kleiner’s stated defense for firing her) because she earned the firm a lot of money. Doerr made those profits explicit in an email when they first tried to fire her. Senior partners in the digital group, Ted Schlein and Matt Murphy, held her to a double standard and prevented her from focusing on investing from the beginning, urging her to stick to one board a year. Lip service to diversity aside, women could not advance within Kleiner Perkins. Yes, they said, Kleiner had high-profile female investors like Mary Meeker and Beth Seidenberg, but they came in with established careers. Yes, Pao was abrasive, but so, by their own employee’s admission, was Chi-Hua Chien. "A woman has a chip on her shoulder; Chi-hua Chien, he gets promoted," Exelrod said.

Despite the opposing versions of Pao they tried to evoke, closing arguments ended up highlighting similarities between the legal strategies for the plaintiff and the defense. Both claimed the other side was distracting from the real issue. "All the finger pointing was designed to distract you from one thing and one thing only, the clear lack of evidence," said Hermle. Focusing on the conflicts Pao had with co-workers rather than her qualifications? "The epitome of distraction," according to Exelrod.

Both made note-taking related to a lawsuit sound nefarious. Kleiner was scheming when, days after Pao filed the lawsuit, partner Matt Murphy started taking notes in his coaching meetings with her that made her sound incompetent. Pao was scheming with her 100 notebooks and emails to friends about her rights as an employee. Who knew lawyers could find lawsuits so unseemly?

The only clues about how the jury might interpret this tangle of assertions comes from the questions that Judge Kahn allowed them to ask after every witness. (They can keep asking during deliberations as well.) Over the past month, the jurors have proven themselves to be astute observers, catching inconsistencies sometimes by virtue of being foreign to venture financing, where (passive-aggressive) emails are sent at all hours and on holidays, or where, as Hermle said, profitability is a "crazy criteria" for a successful investor, but the "thought leader" is king.