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An Alternate Narrative of Ellen Pao Emerges Under Cross-Examination

"While we're on it your honor, I'll offer the game, the book, and the Buddha."

Courtroom sketch by Vicki Behringer.

During the emotional peak of Ellen Pao’s cross-examination this morning, Kleiner Perkins Caufield & Byers’ attorney Lynne Hermle held an enormous board game on her shoulder, clutched at a Buddha and presented a book — all gifts Pao and one of her partners had exchanged.

“While we’re on it, your honor, I’ll offer the game, the book, and the Buddha into evidence,” she said.

Suddenly the objects in this case, a gender discrimination lawsuit filed by Pao against her former employer, seemed almost funny.

Three weeks into this trial, and, at times, it’s getting absurd. The day was a rough slog through now-familiar episodes in Pao’s testimony — that the advances of a colleague, Ajit Nazre, had been unwelcome; that she’d received a book of erotic poetry and sketches from Randy Komisar; that she’d been left out of meetings and parties. Hermle chipped away at each these, showing small but sometimes crucial moments when Pao could have voiced concerns to fix the issues she was having but didn’t, instead only collecting evidence.

In Hermle’s recast of the events, Pao had ample opportunities and support from the firm to address workplace drama. Only after she was rejected from a number of job opportunities in 2011 and heard about a fellow colleague’s experience being harassed by Nazre, did a plan emerge for asking the firm to pay her a severance. Hermle sought to show that Pao’s notion of “having her story be told” and creating opportunities for other women only came in retrospect.

The absence of HR policies and training at Kleiner that Pao’s side has been hammering on in court weren’t even a part of her strategy in her deposition last year, Hermle pointed out numerous times.

And Hermle went further: She sought to show Pao, through emails and texts, as cruel, catty, promiscuous and self-centered.

“You knew he was married with small children?” Hermle asked, before launching into a series of questions about Nazre, with whom Pao had a brief relationship.

There were odd moments. On the topic of Komisar’s inappropriate gift, “The Book of Longing,” Hermle tried to frame it as a more mainstream choice.

“You’ve certainly had time since then to look into the background of the author of that book, Leonard Cohen, didn’t you, Ms. Pao?” Hermle said. “You know he wrote the song ‘Hallelujah?’”

Pao said: “I didn’t know that.”

“Take my word for it on that one,” Hermle said.

Later, Hermle focused on how or why Pao wouldn’t feel comfortable telling Nazre to stop his sexual advances, given she had no problem being direct in other settings. “When he told you he loved you, you didn’t tell him to, ‘shut up?'” Hermle said, saying that last part loudly.

“No,” Pao said.

Pao kept her face tight, stared straight at Hermle, pursed her lips and cocked her head to look almost skeptical of the whole premise of being questioned by the defense. Hermle’s tone was aggressive, chastising and pedantic as though she’d caught someone in a lie. And at moments it seemed she had — or at least caught Pao misremembering.

In her petite frame, Pao, Ivy League educated and type-A, has come to symbolically embody so much of the frustration about gender issues in Silicon Valley. But she’s not a perfect heroine. If this case were simple, Kleiner Perkins would have settled.

Hermle sought to show Pao had been slowly calculating this case, getting advice from a friend, Lori Park of Google, about how to trick co-workers into sending incriminating emails that could be used as evidence. In the course of the investigation, Pao produced 700,000 pages of Kleiner documents that she had accumulated over her years at the firm, ostensibly for the purposes of this case.

Hermle is aggressive — during examinations she objects every five minutes or so. Pao’s lawyers Therese Lawless and Alan Exelrod took a much quieter tack — during the cross-examination, they objected maybe a half-dozen times all day long. And when they did — even when Judge Kahn sustained it, meaning Hermle wasn’t allowed to ask the question — she went ahead anyway.

For instance:

“And the honeymoon you’re referring to here, you went to Atlanta …,” Hermle said.

“Objection! Relevance?” Lawless called out. “Sustained,” Judge Kahn said.

“Well you went to …,” Hermle said.

“Same objection!” Lawless called out. “Sustained,” Judge Kahn said, eyeing Hermle.

“Well you went to 13 places,” Hermle said, leaving that hint of Pao’s high-flying lifestyle (indulgence and time away from work) in the air before moving on.

In 2011, Pao wrote to Park about hiring a lawyer to take Kleiner Perkins to court.

“I’ll keep you updated; it is going to be fun to see what happens,” she said.

But for Ellen Pao, today was probably not very much fun.

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