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Jurist Steve Sammut, a 62-year-old office supplies representative who voted with the majority against Ellen Pao, reached out to Re/code over the weekend. If we were going to spend so much time covering this trial — Pao’s gender discrimination suit against Kleiner Perkins Caufield & Byers — we deserved to know what happened in the jury deliberations, he wrote. We’d never acknowledged each other in the courtroom, but Sammut said he’d grown familiar with Nellie’s orange laptop case and Liz’s orange shoes.
So all three of us met at the Coffee Bar near Potrero Hill, and over a croissant and a wide-ranging conversation, Sammut gave his own version of the decision to deny Pao’s claims of discrimination, his take on the notorious porn-plane discussion and a blow-by-blow account of the final chaotic moment when a jurist changed his mind in front of 200 people gathered to hear the verdict.
While Sammut may have sided with venture capital firm Kleiner on the legal claims, he said was not impressed with how the firm handled things. In particular, he said, he wished there would have been some way for the jury to chastise Kleiner for having lost its employment policies.
“When this is all said and done, I hope Kleiner Perkins gets punished for that,” he said. “I did want to see them punished for that.”
Later, Sammut added of the workplace environment at the company: “It isn’t good. It’s like the wild, wild West.”
After hearing some five weeks of testimony, the 12 jurors went downstairs in the courthouse to the deliberation room last Wednesday. At the start, they decided not to poll each other on where they stood before beginning the discussion, Sammut said, but it became clear most of the 12 jurors would be in favor of Kleiner. More specifically, one man and one woman were extremely pro-Pao, while one man and one woman were on the fence; the rest were pro-Kleiner.
Sammut said he, like many observers, was surprised the juror perspectives were not more in keeping with their respective genders.
The jurors kept their eyes on the question of whether Pao should have been promoted, rather than being distracted by salacious anecdotes, Sammut said.
Sharp Elbows
During the trial, stories about an all-male ski networking trip, a plane ride in which the conversation may have included discussion of strippers, a workplace affair between Pao and a married colleague, and a book of erotic poetry figured prominently and received conflicting testimony.
In deliberations, Sammut said, the jurors barely spent any time on these, focusing instead on performance reviews.
The jurors agreed the inappropriate plane ride was a matter of “he said, she said” — even if some of Kleiner’s witnesses’ testimonies about how they couldn’t recall details on the stand set off Sammut’s “BS meter,” he said. The jurors agreed the 2007 workplace affair was neutralized because, at the time, firm leader John Doerr had tried to fire Ajit Nazre (the male partner who ended up being central to multiple complaints), and Pao had fought him on it. Further, Sammut and others felt the “erotic poetry book,” Leonard Cohen’s “The Book of Longing,” was not so terrible as Pao’s lawyers had made it out to be.
Instead, it really came down to performance reviews, which the jury affixed along the walls of the deliberation room and walked through in careful detail to compare Pao to her male colleagues, Sammut said. Former Kleiner partner Chi-Hua Chien may have been criticized for having “sharp elbows” early on, but Pao’s negative criticism remained consistent year after year.
“For one of the guys, you might have seen that phrase but it changed the next year,” Sammut said. “But for her, it seemed to be her personality, and you really do have to fit into the firm.”
Pao’s tone, he said, felt disrespectful.
“She could be the smartest person in the world — these are people with big, big egos,” he said. “I actually think Doerr and others used a lot of restraint. She definitely had strong opinions about things that didn’t mesh.”
Her notes to bosses were a little too forthright: “If she were my employee, telling me what to do, I would have fired her for that.”
The Flipped Vote
So about that fourth claim — the one that the jury had trouble reaching a verdict on. Many court watchers familiar with employment law thought Pao’s claim that her firing was retaliation for her lawsuit was a strong one. But Sammut explained that the jury felt the 2012 firing was partly justified.
At the time, John Doerr stepped in and stopped the firing. But Doerr, for whom Pao had served as chief of staff for some five years, seemed a little too close to Pao, Sammut said — so his support then seemed suspect. Pao had said she felt like his “surrogate daughter,” a term Doerr had apparently used.
“The ‘surrogate daughter’ — that was not a good term,” Sammut said. “You felt like she had him in her hip pocket.”
When the jurors voted in the deliberation room, they voted anonymously, and they were split 9-3 against the retaliation claim. But when Judge Harold Khan had each juror pronounce his or her own verdict, one juror had changed his mind on the fourth claim. Sammut said he and some of the other jurors next to him turned and looked at each other in disbelief. “We were like, what the …” he said.
The word that stuck with many of the jurors — and which Sammut suspects tripped up the one who changed his mind — was “substantial.” Pao’s gender had to be a substantial motivating factor in her not being promoted, not just a motivating factor; her complaints and lawsuit had to be a substantial motivating factor in her being fired. So they discussed further what needed to be proven for her to win.
The other jurors didn’t want the flipped juror to switch his mind back just for the sake of convenience. So they voted three times to assure themselves that he was firm in his opinion before coming up again to give their final verdict, which Kahn accepted.
Pao just didn’t have enough solid evidence, Sammut said.
“It was her case to win, not theirs to lose.”
Afterward, the jury all went out to the Hayes Valley bar Dobb’s Ferry for drinks.
“We’re gonna get together again in a couple weeks,” Sammut said.
Sammut’s Impressions of Various Players
On Ray Lane, who asked Vassallo and Pao to take notes at the 2011 Kleiner offsite: “Here’s my problem with Ray Lane — he was a fish out of water. Old guy, army training, [former president] of Oracle, this is a guy who gets whatever he wants, and I think he meant well but it didn’t come out well,” Sammut said. “We joked about it in the jury room. A woman volunteered to take notes, and we were like ‘don’t sue me!'”
Stephen Hirschfeld, who conducted an independent investigation into gender issues at Kleiner, but on the stand had equivocated about many things documented in his own notes: “Oh, we paid no attention to him. We looked at him and … I just didn’t know about him,” Sammut said.
Trae Vassallo: Vassallo was an important and credible witness, but it was confusing for the jury when she came out and talked about her explicit sexual harassment at the firm in the very beginning of the trial, before much of the context was out in the open. Sammut said he and the other jurors wished that both Vassallo and Chien had appeared later in the trial so the jury could have asked them questions. “If she had come back we would have gotten a lot more. Everyone in deliberations was like, ‘If she had come back it would have been all over the place.'”
Lynne Hermle: “Hermle put together a much stronger case — if it had been switched, it would have been very different,” Sammut said. “Exelrod was … I was just tired of hearing about the plane ride. If he asked about it one more time I was going to jump out of my chair.” When Hermle stood to start a cross examination, Sammut found himself writing, “Here we go!” at the top of his notes.
Alan Exelrod: In contrast, Sammut felt that Exelrod took too long to get to the point of his argument and wasn’t as quick on his feet when a witness misstepped. Sammut also said he thought Exelrod basically raised a white flag when he had zero questions for the defense’s last witness, Kleiner partner Beth Seidenberg, and wanted to discuss expert witness costs instead (which Pao would have to pay in the event of a loss).
Wen Hsieh, a partner at the firm who was promoted when Pao wasn’t: “Most credible witness.”
Ted Schlein, who was essentially Pao’s boss: “When it was convenient, he didn’t remember a whole lot.”
Matt Murphy, who fired Pao: “Credible. He worked his way up. He knew what it meant to be a junior partner getting to senior partner.”
John Doerr: “Credible, but his connection with her was different than anyone else’s. Even though he threw in the towel, you could tell he had a soft spot for her, just in the way he looked at her and interacted with her when he was on the stand.”
This article originally appeared on Recode.net.
