STORYTELLING CROSS-EXAMINATION OF ELLEN PAO

Ellen Pao’s law suit seeking $16 million against former employer Kleiner Perkins Caufield & Byers is over. It ended with a defense verdict. This high profile case, according to an Associated Press article on March 23, 2015 “put a spotlight on gender imbalance in Silicon Valley has prompted some technology and venture-capital companies to re-examine their cultures and practices, even before a jury reaches its verdict.” After the verdict, Pao reportedly said, “I have told my story and thousands of people have heard it. If I helped to level the playing field for women and minorities in venture capital, then the battle was worth it,” Associated Press, Mar. 27, 2015.

The defense verdict was probably in no small measure the result of the cross-examination by defense lawyer Lynne Hermle (pictured above) that told a different story from Pao’s. Counsel’s cross was designed to show that Pao had misrepresented and twisted facts. Hermle used the concession-seeking cross-examination technique to show that Pao was passed over for promotion due to her conflicts with colleagues, not out of gender discrimination. For example, as a visual, Hermle used a chart that Ellen Pao had created that listed “resentments” that she had against a partner in the firm. Hermle got Pao to concede that she clashed with a secretary who was late for work and got in a yelling match with a fellow female junior partner. Lynne Hermle’s cross-examination is an excellent example of how to get a party to concede facts and tell the cross-examiner’s story to the jury.

DAVID BOIES’ ADVICE ON CROSS-EXAMINATION

David Boies once again proved his preeminence as a cross-examiner in California’s Proposition 8 case. After driving out two of the other side’s experts when he took their depositions, Boies then turned the one remaining expert into his with his cross-examination at trial.

How does David Boies over and over again conduct devastating cross-examinations? The answer is that he uses the concession-seeking cross-examination technique that we describe in Cross-Examination Handbook 2^nd Edition. This technique is founded on the proposition that the primary purpose of cross is to compel the witness to concede the truth.

This is not a new concept and approach to cross-examination. Emory R. Buckner expressed it well in a chapter in Francis Wellman’s seminal work The Art of Cross-Examination (1903):

            "More cross-examinations are suicidal than homicidal. There are two reasons for this: a mistaken conception as to the function of cross-examination, and faulty technique.

            The purpose of cross-examination should be to catch the truth, ever an elusive fugitive. . ."

Boies embraces and applies the proposition that cross should aim to catch the truth. In an interview, Boies described his cross of the expert called in support of Proposition 8 as follows:

Boies: . . .To ask whether he agrees that not allowing gays to marry while children are being raised by gays is not good for the children, that’s a tricky question, because you narrow it down so that’s the only thing he can say. But you have to listen. If you pick the questions right, the only way to answer the questions to support what you want in the case is to lie. (in the interview, Boies noted that after the cross, the expert wrote an op-ed in the New York Times how he had become a supporter of gay marriage and the good it can do)

Interviewer: You really enjoy that.
Boies: Oh yeah. No question because that is the way you get at truth. Cross-examination is probably the best way we have to really get at the truth. We put somebody on the witness stand, call them to answer questions and it takes an extraordinary person to be able to successfully lie without being tripped up. 


Lawdragon, 198

For more on David Boies’ advice and his application of the concession-seeking method when he took Bill Gates’s deposition, click here.