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Final Arguments Next in Silicon Valley Sex Discrimination Case

Testimony finished on Friday in Ellen Pao’s sex discrimination trial against Kleiner Perkins Caufield & Byers (KPBC) and closing arguments are scheduled for Tuesday. Soon the trial will be in the hands of the six women and six men of the jury to decide, after a month long sleaze-fest, whether Pao was illegally forced out of the globe’s premier venture capital firm and financially cheated just because she is a woman.

The case was supposed to be about the larger implications regarding the future of women in the tech field, which is dominated by a ratio of 70 percent men to 30 percent women.  But the expected unmasking of Silicon Valley’s famously greedy venture capitalists victimizing the reserved, vulnerable Asian girl morphed over the last two weeks as the defense was able to portray a less-than-empathetic side of Ellen Pao.

The real calculus of the trial was dominated by the dueling of three top-tier employment attorneys against each other in a series of kinetic courtroom confrontations that drew standing-room-only crowds.  Orrick, Herrington & Sutcliffe partner Lynne Hermle represented Kleiner Perkins. Pao’s team was led by Alan Exelrod of Rudy, Exelrod, Zieff & Lowe and Therese Lawless of Lawless & Lawless.

Exelrod and Lawless tried to paint Pao as a defenseless former Kleiner Perkins junior partner who was forced to endure a frat-house environment that allowed sexually charged innuendos on business trips, excluded women from brothers-only networking events, and condoned rampant sexual harassment.

From the moment Pao filed her complaint in 2012, salacious accusations started flying. Jurors eventually heard the intimate details of Pao’s years-old affair with a married KPCB partner, necking in parking lots, and a book of sexually-charged Buddhist poetry.

Exelrod went big in the first week by calling Trae Vassallo, a former partner at Kleiner Perkins. She told jurors that partner Ajit Nazre—the married partner with whom Pao previously had a six-month affair—tricked her into going to dinner with him during a New York business trip, and then showed up at her hotel room door in a bathrobe, asking to come in. Vassallo’s accusations hadn’t surfaced in pre-trial discovery. Kleiner Perkins tried to keep her off the stand, but the judge allowed the testimony.

Exelrod hammered former partner Chi-Hua Chien regarding emails in which he called something Pao said “stupid shit,” and wrote, “This constant Ellen bullshit really pisses me off,” and “I won’t let Ellen screw this up.”

Exelrod tried to put VC legend John Doerr, Pao’s direct supervisor, through the emotional ringer. But Doerr was adamant in defending the fairness of the KPCB employment climate, claiming that Kleiner Perkins was not male-dominated and that he had personally tried to mentor Pao.

Many of Exelrod’s more scandalous tidbits from his opening statement lost most of their gotcha value after Hermle explained the supposed factual context and details. The infamous books of sex-laced poetry Pao received from Kleiner Perkins partner Randy Komisar on Valentine’s Day turned out to be related to Komisar and Pao’s mutual interest in Buddhism. The biggest “gotcha” was that Komisar’s wife picked out and purchased the book for Pao.

Lawless pushed hard to describe KPCB as a place that treated women as second-class citizens. Pao testified that women were left out of a 2011 networking dinner at former Vice President Al Gore’s home in San Francisco, and that one partner had said it was because women would “kill the buzz.” But despite the alleged comment being made at a partners meeting in front of a number of witnesses, no one from Kleiner Perkins corroborated Pao’s account.

The key to the Kleiner Perkins defense was Lynne Hermle’s ability to flip the script on the Pao team’s assertion that Pao and two female colleagues were paid less than three male colleagues with similar qualifications; and the women were not promoted to senior partner in 2011, but the men were.

Using a graph, Hermle demonstrated that to the jury that Pao earned more than all three of the men during her entire tenure at KPCB. In 2011, Pao made $380,000 a year, not including a bonus, while one male colleague made almost $100,000 less.

KPCB lawyers bashed Pao’s perceived failure to be a team player, focusing on complaints that Pao was “territorial,” “difficult to get along with,” and “seems to have clashes or issues with many different partners.” Hermle unveiled emails and other documents that designed to paint Pao as an untrustworthy co-worker without empathy.

Pao used email to reprimand her assistant for arriving late to work, despite that fact that the women stopped to aid the victim of a car crash. “It’s great that you want to be helpful to your landlord,” Pao wrote in an email. “It would be better for me if you could come to work on time.”

Pao in the firm’s 2009 self-review complained of a co-worker’s frequent trips to Asia to comfort his dying mother suffering from brain cancer. “I fill in the slack when others drop the ball,” Pao wrote, “which I find unpleasant and which others often resent.”

Trial observers see the verdict as a toss-up going into final arguments on Tuesday. Most are surprised that Kleiner Perkins chose to fight and suffer bad publicity, rather than quietly settling for cash.

The jury is not only equal by gender: it also includes a diversity of occupations, such as a painter, a physical therapist and a prison nurse. They are all taking notes and seem completely engaged during weeks of testimony.

The question will come down to whether jurors believe that Pao is a victim, or whether she is an abrasive and incompetent victimizer.

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