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The Real Precedent in the Ellen Pao Case Happened Out of Court

At times it was like we were all in a living "Lean In" book club together.

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“Is this the trial of the century?” asked Marketplace’s Kai Ryssdal each time I went on his radio show to discuss Ellen Pao’s gender discrimination and retaliation lawsuit against her former employer Kleiner Perkins Caufield & Byers.

I wasn’t sure how to answer that. In a sense it’s a ridiculous question (no offense to Kai). It is not hard to think of cases that have set more important legal precedents in the fields of both employment and technology. This was a trial at a San Francisco city courthouse. It wasn’t even a federal case.

But then why were Nellie Bowles and I covering it so closely for Re/code?

Ultimately, it’s because the Pao/Kleiner Perkins trial was not setting a legal precedent, but a public discussion precedent. While we didn’t know that would be the case going in, we dug in and committed to daily reports when we realized what was going on.

Because at the core, the trial provoked many people, both inside the technology world and outside, to think about the mechanics of how an elite gender-imbalanced world works.

Consider the optimistic estimate of venture capital, as presented by a Kleiner Perkins expert at the trial, that six percent of investors are women. That’s simply terrible. VCs are the powerful funding sources behind the technology that helps define our modern lives and they should better represent the people who use that technology.

But that was true before the trial. From the onset, Kleiner Perkins’ public image was battered by Pao’s lawsuit, and the venture capital world had a terrible record on including women.

What the trial did change is how those issues resonated, as it dragged everyone through the excruciating details of Pao’s tenure at Kleiner Perkins and made us turn the prickly and complex situations over in our own minds.

Each day brought a new piece of the puzzle, whether it was a salacious incident, a questionable performance review, or when two people had entirely different recollections of a conversation they both participated in.

Those of us following the trial day by day in person or by reading reports had to consider how a person’s personality plays into their ability to fit into an elite club. It made us think through how we’d handle subtle situations that could be seen completely differently through different people’s eyes. It made us reevaluate the ground rules for ambition.

At times it was like we were all in a “Lean In” book club together, discussing the themes of the famous book about women in the workplace by Facebook COO Sheryl Sandberg — and that conversation included people who would never be caught dead reading “Lean In.”

For me personally, it was a welcome opportunity to go deep on a topic and develop an educated perspective on it, something I’ll be doing going forward in the form of a regular new column for Re/code about innovation and the impact of technology. In it, I hope to educate readers and even myself about what’s really going on at the heart of Silicon Valley and beyond, trying to grok what’s at the heart of perhaps the most important economic engine of this era. Like the Kleiner trial, it won’t always be pretty; but like it too, it will not be something you can easily boil down to simple narratives and conclusions.

In that way, the Pao/Kleiner case was more than a big story. The trial provoked a sustained discussion about gender issues that went beyond the day-long news blip of a troubling diversity report with a lot of stats but little illumination as to the real issues.

Was it confusing and convoluted? Yes. The trial was brutal to both Pao and Kleiner Perkins; exposing each of their flaws in piles of documents and testimony gave us a sense that we were really scouring every nook and cranny under the hood. Most or all of us have been in workplaces ourselves — but we do not often get to see them from angles other than our own.

That’s why, as I sat in court each day, I found myself seeing valid points and flaws from both sides. There were two sides to every story, and two faces to every person. Most prominently that was clear for Ellen Pao, whose personality sang when she was questioned by her own attorneys but who shut down when she was strafed by the defense.

I found the claims of double standards in her case most compelling, but her legal team lost me when it tried to paint two male partners at Kleiner Perkins, Matt Murphy and Ted Schlein, into the leaders of a big bad boys’ club. I was perfectly willing to believe the two men operated from a privileged place that clouded their vision. But did they really push Ellen Pao out of Kleiner Perkins fraudulently, as her side claimed? On the other hand, the narrow way the defense team tried to portray Ellen Pao as a cold, unnuanced and “entitled” person was sometimes glaringly unfair.

I had trouble feeling sorry for Kleiner Perkins. The details exposed about how the elite venture capital world operates made me highly skeptical that these privileged people bring as much value to the world as they extract to spend on their endless private plane flights and million-dollar salaries. After watching the trial every day, I now cannot imagine their clubby, like-attracts-like lifestyle lends itself to a whole heck of a lot of perspective.

In the end, Ellen Pao’s puzzle was ultimately missing more than a few pieces for the careful jury after more than a month of testimony — and perhaps they were not wrong to think that. Because when I asked myself on the last day of the closing arguments whether Ellen Pao had proven that Kleiner Perkins discriminated based on her gender, I had my doubts too. As in much of life, that was because this case was not as clear cut as one single clear fact that it illuminated: That the technology industry has a gender problem and has got to fix it.

So Kleiner Perkins prevailed. But that also does not mean that Pao has to go home with her head down. In submitting herself to be torn apart on the stand, she ratcheted up a meaningful and necessary public conversation. She’s still interim CEO of Reddit, and now she’s a global symbol of someone who stood up for what she thought was right. She’s not a winner, but she didn’t lose everything.

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