"Jurors Are the Ones Who Hold the Power"

Apr 08, 2015

http://www.usatoday.com/story/tech/2015/03/23/voices-ellen-pao-trial/25106331/

Voices: Pao jurors are the ones who hold the power

SAN FRANCISCO – For the past three weeks, I've been spending every weekday sitting in the Ellen Pao trial. While I don't know what the outcome will be, it has reminded me of a very profound truth.

Trial by jury is a remarkable and inspiring part of our legal system. I'm in awe each day I sit and watch this play out before me.

Pao is a former junior partner at Kleiner Perkins Caufield & Byers who is suing the storied venture capital firm for $16 million plus punitive damage, alleging sexual discrimination and retaliation.

Every morning at 9, about 30 or so people stream into room 604 of San Francisco Superior Court. Some are lawyers, some reporters, some bigwigs at Bay area tech firms here to get a feel for a high profile case that's raising uncomfortable issues for the community.

But the most important are the jurors. There are 15 of them, 12 on the jury proper and three alternates in case one of the jurors falls ill or has an emergency.

They are a range of ages, races and ethnicities. I cannot imagine any of them earn anywhere near what the venture capitalists and experts (some of whom make $750 an hour) taking the stand do.

And yet it is their opinion, and no other, that matters.

It is they who will decide whether a partnership that has more than $7 billion under management is or is not guilty of discriminating against Pao due to her gender.

Unlike in too many places in the world, it won't be decided in some backroom deal. It won't be decided by a paid-off government bureaucrat. It won't be decided by a politician who stands to win votes one way or the other.

It will be up to these six women and six men.

They take their task very seriously. Each day they sit in the jury box, listening intently and writing voluminous notes on court-provided notepads.

There's a point in the proceedings after the lawyers have finished with each witness that I just want to preserve in glass. It comes when the jury and its questions take center stage. This stands out to me as a great example of what's right about our system of law.

The judge in this case, Harold Kahn, clearly loves the law, loves jurisprudence and loves to get people engaged in it.

We can tell that by his banter with the jury during breaks, when he calls out, "Got any civics questions for me?" and then joyfully answers them.

He also invites classes of middle-schoolers into court to watch the action every Wednesday. When they file in, Kahn stops the proceedings, introduces whoever is on the stand and explains what's happening. Then he takes, and answers, the students' questions.

He also does something else that's relatively rare, though not unheard of. When the lawyers for Pao and Kleiner are done questioning each witness, Kahn gives the jury the chance to ask its own questions.

This is my favorite part. The jurors aren't trying to catch anyone in errors; they're not trying to elicit some fact they can later use to prove a point. Instead, they ask the kind of broad questions many of us in the courtroom would ask if we could.

There is a moment of quiet ceremony when those handwritten question are handed to the clerk, who hands them to the judge, who reads them from the bench.

These 12 jurors are putting some of the most powerful and wealthy people in the state to the test. They ask, and the person on the stand must answer, under oath.

It's a heady thing, seeing the power of the law take precedence over power or wealth. After all, the word privilege comes from "private law." Here, there is only public law.

Take two weeks ago, when Kleiner partner general John Doerr was on the stand. He's worth $3.5 billion. Yes, billion with a B.

Doerr is someone who has several people on staff (Pao was one of them) whose sole job it is to "leverage" his time. That means they work 50 or more hours a week simply to make it as frictionless as possible for him to do the things he does that make all that money.

And yet on the stand, Doerr spent almost an hour patiently answering juror questions.

I would venture that he is not someone who generally spends much time being grilled by people whose total net worth is likely a rounding error in his tax filing.

Their questions are overwhelmingly intelligent, probing and thoughtful.

To Doerr, they included: What's the venture capital community in Silicon Valley like? Can anyone do venture capital? Why is female participation in venture capital so pathetic?

It's a small thing, but it gives me a quiet thrill each time it happens. Everyone is equal before the law. In Judge Kahn's courtroom, we see it in action.

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