One angry man: Dispatches from the Pao vs Kleiner courtroom, Pt I

By Dan Raile , written on March 2, 2015

From The News Desk

On Tuesday, Re/Code's Kara Swisher was interviewing Hilary Clinton. On Wednesday, she was sitting behind me in the gallery of a courtroom in San Francisco Superior Court, wearing dark sunglasses and eating some kind of takeout.

The rest of us in the working tech press can only dream of reaching the level of importance that allows one to eat our lunch in court, in defiance of posted signs. By contrast, the co-editor of TechCrunch apparently has some way to go, it seems: No sooner had she raised her phone to capture the scene in court than a staffer swooped, informing her that no photography was allowed within the courtroom. If her photos were published, her editor would be contacted. A TechCrunch writer joked on Twitter if that might itself be an example of gender bias: Assuming a woman couldn't possibly be an editor.

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That's certainly possible, as is the idea that the court staffer assumed that, regardless of gender, the editor of a publication robust enough to maintain a presence in his courtroom would know better than to try to take photographs of the proceedings.

* * * *

Lynne Hermle, KPCB lead attorney: “As of [2008] did you think there was hope for Ms. Pao as an investing partner?”

KPCB Managing Partner Ted Schlein: “I was skeptical. She was very black and white and most of our business is quite gray … Often there is imperfect information and our job is processing little pieces and moving on and not getting hung up on the details, but I would say that was not part of Ellen’s genetic makeup.”

* * * *

Not that I'm in any position to judge the expertise or experience of my colleagues. This, after all, is my first crack at serious legal reportage – I once worked in the paralegal department of a firm that defended venture capital and banking interests in litigations, but in that gig was rarely asked to offer an opinion.

Unlike the Techtopus wage-fixing hearings which were attended in most part only by Old Media, the tech bloggers are out in force to cover Pao vs Kleiner Perkins. Bylines from Re/Code, TechCrunch, Wired, Ars Technica share the benches with The Wall Street Journal, the San Francisco Chronicle, The San Jose Mercury News, USA Today, Fortune, Forbes, The Recorder, and others too numerous to catalog.

Re/Code has established a position to the stage-right (bench-right?) side of things, close to the jury’s box and plaintiff Ellen Pao’s counsel. Swisher's prefers a squad approach, reporters mainly staying close to the front, though one of them periodically takes a shift in the back, where there are more open electrical outlets and a half-wall to serve as a standing desk. TechCrunch, by contrast, seems to favor the perspective from the back, stage-left, the hemisphere of defendant Kleiner Perkins Caufield & Byers’ counsel and the clerk.

* * * *

Hermle: “Is there a rigid hierarchy of reporting relationships at Kleiner Perkins?”

 Schlein: “Actually, we go out of our way to avoid hierarchies. A partnership is a group of people that want to be together and work together to achieve goals’s meritocracy, the best idea and the best people win. Influence is what makes a successful venture capitalist, and you can’t overlay a hierarchy on that. You have to use your skills as a communicator and influencer … it’s about influence rather than authority. It’s a people business.”

* * * *

Kleiner Perkins was among the first non-US military sources of investment in silicon-based technologies, and in its four decades of existence has cultivated an imposing and strategic mystique. With all these journalists on hand to witness its top partners trying to make a sympathetic impression on a jury of 16 regular San Franciscans, it is no surprise the firm has assigned a media relations person to try to keep the wheels on the train.

My first encounter with Kleiner's press wrangler came by accident, after I stumbled into a conversation she was having with a group of my fellow hacks. I had noticed the woman in court, making her rounds, even accompanying another journalist to lunch, but had no idea yet who she was. As I made my unsolicited interruption, she immediately stood and offered me her hand and her first name. I replied with my own first name -- "Dan..." -- but she maintained her grip and her eye contact, as if waiting for more.

“...from Pando,” I said, and she relented, satisfied but clearly surprised. She told me -- warned me, perhaps? -- that she’d just talked with my editor, like yesterday, and hadn't realized I would be there. Nice to meet you too.

* * * *

Hermle [referring to Schlein’s handwritten notes from a meeting discussing Pao’s performance review]: “why didn’t you date them?”

Schlein: “I’m not very good with dates.” [laughter]

Hermle: “Why does it say ‘entitlement’ up at the top?”

Schlein: “Entitlement was the term used to describe Ellen [Pao].”

* * * *

Of course, those of us in the court represent only a tiny fraction of those commenting on the case, in Twitter feeds, message boards and notably on Reddit, whose CEO is this case’s plaintiff. Perhaps that explains the presence of the Men's Right's advocate who decided to befriend me one afternoon as the courtroom was emptying out for the weekend.

The man made eye contact as he passed my seat, and we exchanged greetings and preliminary chit-chat. What brought him here? That I genuinely wanted to know. He’d been sitting idly in the middle of the room day after day, as the rest of us working stiffs clacked away and tilted our heads from side to side, inventing new story angles. He explained that he is attending the trial out of personal interest. The vital “concerned citizen.”

We continued our platitudes -- yes, this will be a tough case...  how can one recognize the truth of a matter amid radically opposed reconstructions of context? --  until things suddenly got interesting, his voice rising above the hushed courtroom muttering and laptop tapping. He was talking about “the world’s oldest profession” and how “Jewish people were responsible for that, but whatever.” I made my excuses to leave as he started insisting I read Betty Freidan, who had opened his eyes to the depths of the feminist agenda and its conspiratorial advance.

No luck. He followed me down the hall, reassuring me that I too would come around once I understood the scope of the threat as he did. I succeeding in finding a bench to sit on, and glaring at my iPhone in a way that suggested I had to attend to some very important business. He marched off towards the elevator, stopping one last time to offer me some heartfelt encouragement in my personal journey, at volume.

Only afterwards did I realize how odd it is to meet a living, mouth-breathing Men's Rights activist in the real world, rather than encountering them in Tweets and Reddit postings where there's always the hope that I'm being fooled by an avant-garde feminist prank.  No, he was very, very real and one of only a handful of men in regular attendance -- a fact he had no doubt registered and filed away as proof of something or other.

* * * *

Plaintiff’s lead counsel Alan Exelrod: “You described [Chegg CEO Dan Rosenswieg] as ‘a real piece of work’, is that right?”

Schlein: “Yes.”

Exelrod: “And you told [Kleiner’s hired investigator] Hirschfeld that Dan could say all sorts of funny things, right?”

Schlein: “Dan is a funny guy.”

Exelrod: “During that conversation on the plane, did Mr. Rosensweig discuss Jenna Jameson?”

Schlein: “I don’t remember.”

Exelrod: “And Mr. Rosensweig did talk about a club of which he was a member, with hot Eastern European waitstaff?”

Schlein: “Yes, well I think he said cute.”

Exelrod: “And he did talk about the Victoria Secret runway show?”

Schlein: “Yes.”

* * * *

Sadly for me, fortunately for readers, I likely won't have many more opportunities to be distracted by what's happening in the galleries. The trial is just getting started but, as we enter the first full week, already it's a humdinger. From here on out, all eyes will be on the stand, and on the crack team of lawyers hoping to convince us whether Kleiner specifically, and the world generally, still has a problem with gender in the workplace.

One morning, as we all waited for the day's first session to begin, I watched as Kleiner Perkins attorney Lynne Hermle surveyed the gallery. Standing with two of her colleagues from the lawfirm Orrick, Herrington & Sutcliffe, she noted that the crowd had thinned compared to previous days. She seemed disappointed. Like actors, lawyers apparently play better to a packed house.

“There will probably be a lot of people here for John Doerr," her colleague suggested. "Anyone else you can think of [who might draw crowds]?”

Hermle smiled and gestured to her striking young male co-counsel: “What about America’s sexiest lawyer here?”

The trial continues...

[Illustration by Brad Jonas for Pando]