Ellen Pao v. Kleiner Perkins: The Defense Risked a Split Verdict

Written by Michael Dorsi

As this post goes up, the jury in Ellen Pao v. Kleiner, Perkins, Caufield & Byers has been sent back to deliberate on the fourth claim — that Ellen Pao was fired in retaliation for her bringing this lawsuit.

The case has been closely watched for the scrutiny of the culture of Kleiner Perkins, venture capital, and Silicon Valley, which Ms. Pao’s attorneys characterized as a boy’s club. In the end, only two of the twelve jurors agreed with Ms. Pao’s case concerning gender discrimination, but two more found that Ms. Pao was the victim of retaliation.

While watching Kleiner Perkins’ attorney Lynne Hermle give her closing argument, I suspected that there could be a split verdict, finding Kleiner Perkins liable only for retaliation, not for gender discrimination.

What did not cross my mind in the audience was that the jury might end up without a sufficient majority on the fourth claim, or more bizarre result today: that the jury thought they had enough votes, but counted wrong.

Kleiner Perkins Story of Ellen Pao in Performance Reviews

In Kleiner Perkins’ closing argument, Ms. Hermle argued that written performance reviews — some of which predate Ms. Pao’s internal complaints — told the real story why the leadership of Kleiner Perkins didn’t want to make her a partner. The reviews, projected onto screen and appearing larger than life, included comments on Ms. Pao’s specific experiences and commentary on her personality. The reviews said that Ms. Pao was too confrontational with the people she worked with. Multiple reviews say that Ms. Pao was better suited for an operational role, rather than being made a partner.

Ms. Hermle did not concede that Ms. Pao was the victim of retaliation, but did spend most of her closing argument focused on the discrimination charges (perhaps because the discrimination claims were tied to larger monetary claims). When Lynne Hermle got to the retaliation and termination claim, she tried to convince the jury that the writing was on the wall from these performance reviews: Pao was going to be terminated.

But the performance reviews themselves were open to a different interpretation: Kleiner Perkins just didn’t want to make Ellen Pao a partner. She could have transferred back to an operational role, which she had done when she started at Kleiner Perkins, and in which she had been more successful.

And the timing was arguably suspicious, terminating her a few after she filed suit (Pao later amended her initial complaint to add the termination claim).

Two Jurors Saw Retaliation Only

The jury appeared today and by a vote of 10-2, found no liability for Kleiner Perkins on the gender discrimination claims. But on the retaliation claim, the jury made an arithmetic error, believing they had nine votes against Ms. Pao rather than the actual eight. Judge Kahn asked each juror to state their votes, and finding a vote of 8-4 on the retaliation claim, sent the jury back for more deliberations.Ellen Pao Trial

Stay tuned!

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