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Lawyers Reading Mean Tweets: How the Media Influenced the Ellen Pao Trial

The jurors can't follow the coverage, but everyone else in court is lapping it up.

Courtroom sketch by Vicki Behringer.

Late on Friday night, when the jury and the crowds had left the double-wide courtroom where Ellen Pao was suing her former venture capital firm, the judge took a bathroom break and the lawyers, alone but for a Re/code reporter tucked in the back, started doing something peculiar.

They began reading reporter tweets aloud.

Lynne Hermle, Kleiner Perkins’ ferocious and charismatic defense attorney, said: “Listen to this.” Laughing hard, Hermle read a series of reporter tweets to Alan Exelrod, Pao’s measured, professorial attorney, who shook his head and chortled, saying “no, no.” The judge, Harold Kahn, came back and chimed in with a “what?!” to a particularly silly one.

In this historic and high profile case, the media coverage has had a strangely powerful influence on the court proceedings. Though the jury may have to live in a self-imposed media-free vacuum, the judge, lawyers and witnesses do not. They’re glued to the press. Trials do not often get this much attention.

The lawyers follow each story carefully. Hermle’s husband sits many days in back with tech blogs open on his tablet. One witness said, in response to a question on the stand, that she knew something because she’d been reading Re/code’s liveblog. Judge Kahn said in a formal statement that Kleiner Perkins could not discuss Pao’s well-known and controversial husband, Buddy Fletcher, because it would create “an unseemly sideshow.”

When we wondered in the liveblog whether Hermle’s decorative gold brooch was a mockingjay, she came over three minutes later, during the next break, saying it was not. (It was a hawk, or maybe an eagle, she said. A gift from her grandmother.) Later, her staff was making the “Hunger Games” three-finger salute to her.

And in perhaps the most personally surprising moment of interaction, the Kleiner team incorporated the wording from one of Recode’s headlines — the mysterious missing admins — into their closing argument.

One person with close knowledge of the case said Judge Kahn was thinking of having the jury do some sort of post-verdict Q&A, to prevent reporters from tracking jurors down at their workplaces and homes.

Why has there been so much coverage? This trial is the center of a perfect storm. All year, the topic of women in tech has been receiving more attention, but it’s hard to push it forward beyond just writing about the egregious statistics over and over. At the same time, a local boom in tech reporters, media outlets and interest in Silicon Valley means a fair number of bloggers are paid to come to trial every day (ourselves among them). And there’s also the elements of the story, which almost writes itself: Billionaires, porn, men in bathrobes.

As we wait for the verdict, the lawyers are loosening up, giving off-the-record interviews, charming reporters and jostling to position this historic trial into their own careers or to throw spin on moments that worked or didn’t work. Also to throw shade. From recent conversations, we suspect there will be much shade thrown post-trial, no matter who wins. The jurors may well do the same.

And we’ll be there to report it.

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