As the dust from the harassment and retaliation trial-of-the-century settles, take-aways emerge for litigation of future employment cases.
Although Ellen Pao lost on all the claims she made against her former employer, well-known Silicon Valley venture capital firm Kleiner Perkins, jurors and trial observers say the case could have gone either way. Certain things resonated, however, to ultimately swing the case in Kleiner Perkins’ favor. By most accounts, the graphics presented by Kleiner Perkins’ lawyers to explain their side of the case were a big reason they won. One had a chart with the qualifications needed to be promoted at Kleiner Perkins, with Pao on one side and her male counterparts on the other. During closing argument, the lead defense lawyer, Lynne Hermle, made a big green check for each qualification each candidate had, and a red “x” for each one they lacked. By the end of the presentation, Pao’s side of the chart was almost entirely red, a jarring visual. Also, Pao’s change in demeanor from her own direct testimony, when she was friendly and forthright, to her cross-examination, when she was curt, seems to have turned jurors against her. While it is often smart for witnesses to keep answers to a minimum when being questioned by an opposing attorney, they should not go so far as to seem hostile. Another important lesson is that, despite a recent ruling by the California Supreme Court that harassment plaintiffs generally won’t be responsible for court costs if they lose, that ruling does not apply when a plaintiff rejects a good-faith settlement offer before trial. Because Pao lost her case after rejecting a settlement offer of close to $1 million, she had to pay Kleiner Perkins $228,646 for its costs (which was still far less than the $864,680 Kleiner had asked for).