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The Reputational Costs of Litigation: Lessons from Pao v. Kleiner Perkins

By Mike Kuczkowski

Silicon Valley is abuzz with Ellen Pao’s gender bias case against venture capital firm Kleiner, Perkins, Caufield & Byers.

A former junior partner at KPCB, Pao, 45, alleged that male partners discriminated against female junior partners. Pao, who worked at KPCB for seven and a half years, said she was sexually harassed by a former partner. She claimed the firm retaliated against her by firing her after she filed her lawsuit.

Pao lost on all counts.

Pao’s lawsuit is a case study in the importance of communications to parties in a litigation. Delivering great communications support in the courtroom requires focusing on reputation as an outcome. Depending on what’s at stake, that can be as important as the verdict.

You can see that Pao tried to claim a reputational victory. In a post-verdict news conference, Pao said “If I’ve helped to level the playing field for women and minorities in venture capital, then the battle was worth it.”

That’s a big “if.” Many commentators agree Pao opened an important debate about the treatment of women in the corporate world. But in the course of her lawsuit, she shined a spotlight on bad behavior on both sides. And she ultimately failed to persuade a jury she had been wronged.

Here are some of the more salacious claims that emerged during testimony:

Claims that Impact Reputation

Ellen Pao Various individual partners at KPCB
–       Kept a “chart of resentments” against her Kleiner colleagues –       Consciously excluded women from a private dinner with Al Gore, saying that they would “kill the buzz.”
–       Had an affair with a married partner – who claimed his wife had left him, which later turned out not to be true – for six months –       Openly discussed their favorite porn stars on a private plane, when Pao was present (that’s according to Pao; another witness disputed this claim)
–       Sent negative emails about colleagues to partners behind the colleagues’ back –       Excluded women from a business ski trip
–       Was paid $200,000 in severance over a period of six months after being fired. –       Gave Pao “The Book of Longing,” a Leonard Cohen book of erotic poetry featuring nude drawings, as a Christmas gift
–       Is married to disgraced ex-hedge fund manager Alphonse “Buddy” Fletcher, who himself has a history of discrimination legal claims. (His personal debt has been offered as a motive for Pao’s legal action.) –       The same male partner who’d had an affair with Pao showed up at the room of another female Kleiner partner wearing only a bathrobe and slippers (He was later fired for this and other harassment.)

These gossipy details will stick with both Pao and her former employer for some time, and may have far-reaching implications. Both parties have the challenge of proving that they are not the versions of themselves on display in the worst days of court.

The Role of Communications

This is why communications should play a vital role in litigation.

In a litigation as high profile as this one, media relations is front and center. A lawsuit is conflict in a capsule, a natural draw to journalists and editors. I’ve been through this dozens of times, both as a journalist and as a PR professional. The legal filings and courtroom activity provide an easy narrative for reporters to follow, as two parties seek resolution of their claims. Day in, day out, reporters will look for a news hook in legal filings, courtroom strategy, testimony and jury deliberations, even if the actual proceedings are as dull as watching paint dry.

Many lawyers use media relations as a tactic to advance their own reputations during lawsuits. I’ve been in a situation where, after a good day in court, lead counsel of a high-profile lawsuit called me to urge the Wall Street Journal to run a prominent piece about the proceedings. I had to explain to him, an accomplished jurist, that that is not how media relations works.

Keys to Good Coverage

If you want good media coverage, you need to look beyond ‘winning’ each day in the media. First, you have to take the time to help reporters understand the process. Meet with them and a member of the legal team in advance of the proceedings. That way, you can brief them on the fundamental claims, the legal issues at stake, the key players and the calendar of events.

Then you need to align with the legal team on the day-in, day-out rhythms of court activity. What’s happening each week, and what do we expect from the other side. All of these details are worked out in advance, but often they are not shared with the communications team. If you can signal to reporters what to expect, you can become a trusted resource to the press, and that in turn will drive the media coverage. Reporters must file a story. That’s what they’re paid for, and in the era of the never-ending news cycle, they are often filing 140-character stories throughout the day. And like many people in many jobs, they appreciate knowing in advance when nothing interesting is going to happen.

In litigation like Pao’s, the attorneys for both sides are seeking to give their client the best representation possible, and to win their case. This invariably involves multiple fine-point decisions about legal strategy and obscure legal arguments. Some of this can get very arcane very quickly. And at times, what is efficient in the courtroom is not effective in the media.

An Approach for Litigation Communications

Once the lawsuit is in front of a jury, the role of the communications team is distinct from the legal team, but valuable. They should:

  • Own the narrative: Distill the essential legal maneuvers and arguments into comprehensible messages and narrative points.
  • Be compelling: Why does this matter? If millions of dollars are at stake, as is often the case in complex civil litigation, there’s most likely a compelling issue of fairness or ownership in play.
  • Make it relatable: Translating the legal issues into something we can all relate to is critical. Ultimately, many disputes ultimately come down to matters of fairness, ownership or righting a wrong. Who can’t identify with that?
  • Align the narrative with the legal strategy: Words matter. You can’t say things to the media that are at odds with what the legal team will say. Mine the legal team’s approach for a narrative and key messages.
  • Be resilient: There are three sides to every lawsuit: One side, the other side and the truth. Consider what the other side is going to say and how they will characterize or rebut your claims.
  • Be a resource: Lots of things that happen in court are complicated. If you can be the person who can explain it to the media, then you can be a valuable resource. And that means, you can get the ear of the media when it matters.
  • Strive for clarity: Lawyers are usually precise about the words they use. However, legal jargon can sometimes displace clear, simple language. Get a copy of Black’s Law Dictionary. Dig in and understand what the legal issues mean, and find the simplest ways to convey them.
  • Use the facts: Lawsuits ultimately involve a set of facts assembled to support an argument. That’s a framework with which communicators should be very familiar.

Reputation v. Litigation: Focus on Outcomes

Legal disputes have an ending, but reputations are enduring. In the end, both matter.

In the wake of the verdict, Pao is casting herself as a crusader for women’s issues. It will be interesting to see if her long-term career moves and activism keep her at the center of that cause, or whether that narrative was merely expedient to justify her actions. Anyone who will bring her on board as an employee (she is currently the interim CEO of the social media site Reddit) will now be aware of her tendencies.

For their part, Kleiner faces serious questions about its culture. Several observers have speculated that the firm may need to restructure. That’s no victory. It’s hard to imagine the lawsuit will improve their recruitment efforts among junior female applicants. Female business leaders may turn elsewhere for finance support.

Now, it’s up to us to decide whether what the firm said in a post-verdict email to reporters is true: “Today’s verdict reaffirms that Ellen Pao’s claims have no legal merit. We are grateful to the jury for its careful examination of the facts. There is no question gender diversity in the workplace is an important issue. KPCB remains committed to supporting women in venture capital and technology both inside our firm and within our industry.”

The lawsuit is over, but both sides lost the battle of reputations. Now the process of rebuilding begins.

Rules for Litigation Communications

By Mike Kuczkowski

The first move for anyone facing a lawsuit is to get a good lawyer.

The second move: get a good communications counselor.

In Pao v. Kleiner Perkins, (see The Reputational Costs of Litigation), both sides put significant resources into communications. Pao lunched with reporters from Reuters and re/code. (Note: registration required for access.) The Wall Street Journal took an in-depth look at crisis communications firm Brunswick’s efforts on behalf of Kleiner Perkins. (Ditto.)

I’ve been on both sides of lawsuits, as a reporter and as communications counsel on high-profile cases for law firms and corporations. Here are some keys to success for anyone who provides communications support for a client facing a lawsuit:

  1. Know the narrative: A lawsuit has a narrative arc. A good attorney will craft a strong narrative in his or her opening statement that will pay off during days of testimony and in their closing statement. This narrative will convey key messages that are the soul of a case. The communications team needs to understand that narrative before a case begins and how each day will assemble pieces of that story. It is the communications team’s job to reinforce their side’s version of events as it unfolds and to remind reporters what’s really at stake in the courtroom.
  2. Know the briefs: Even before a jury is convened, media coverage of a lawsuit is framed by legal filings and court appearances. Understanding the claims and statements in those briefs is the best way to understand the story media will report. Reviewing a legal filing as it is being filed is critical to being able to answer reporters’ questions.
  3. Know the key players: Who will testify? What will they say? The witnesses in a lawsuit are like the characters in a narrative. It’s important to know who they are, what they will say, and what their testimony will mean to the case.
  4. Understand the trial calendar: Typically, litigators will have a calendar that drives their case including expected witnesses, evidentiary submissions and legal briefs. Knowing that timeline and being open about expectations with members of the media who are covering a trial helps build trust. Trust helps the broader picture of the case from your perspective.
  5. Accept that some days will be better than others. Lawsuits present a fractured, subjective picture of events. Witnesses take the stand and tell a part of a story. This means that any news coverage that reflects the events of a given day will be highly biased, based on the events that unfolded in court. You literally will win some and lose some, but on balance you are better served if you can keep reminding reporters and others following the court case of the bigger picture.
  6. Everything is fair game: I’ve had lots of discussions with reporters and attorneys about this, and there’s no way around it—if it happens in open court, it’s fair game for reporters. Witness the fact that “Buddy Fletcher,” Pao’s husband and a hedge fund manager with a history of discrimination lawsuits, was the most frequently cited paired search term with “Ellen Pao.” The implication is that Pao’s motive was tied to Fletcher’s past behavior of filing suits claiming discrimination. Attorneys often present arguments out of earshot of jury members. However, the attorneys need to recognize that there may be media coverage of what they are trying to get a judge to allow them to say
  7. The jury itself is fair game: As a reporter, I used to hang around the courtroom after verdicts and seek to interview members of a jury to better understand why they voted as they did. These insights are often surprising, and may prove damning as in the case of Pao juror Steve Sammut. Summut has given a number of interviews about the case to several media outlets. Sammut says Kleiner should “be punished” despite being found not guilty of the specific charges.
  8. Set expectations and deliver: There’s an adage about the value of repetition in writing: tell them what you’re going to tell them, tell them, tell them what you told them. The same approach applies to litigation communications. Reporters are busy people and their readers have short attention spans. If you can lay out an anticipated timeline for both audiences then highlight the ways in which that timeline is playing out.
  9. Be a resource: There can be pressure, from attorneys or clients, to obfuscate certain facts or try to “spin” what happens in court. Don’t do it. Tell people what happened. Explain it as best you can. Note when a witness said something that was at odds with their deposition Explain why an attorney who has been extremely animated in court felt that a witness’s testimony was inconsistent with the facts. Being a resource for facts will only help you and your client get a fair hearing.
  10. Expect boredom: The courtroom bears little relation to a Perry Mason episode. Even titillating details often become snore-worthy when they are repeated over and over. Most court cases involve days and days of drudgery.
  11. Expect the unusual: Occasionally, there will be moments of actual courtroom drama and when they happen it may well be that the litigation communications team is the only team that truly understands what has happened. Being a resource to reporters to explain what’s going on and why what just happened is important.
  12. Be ready: When a verdict comes in, the machinery of media coverage kicks into action. You have to have a clear plan and you have to be able to move fast to deliver your side of the story.

Throughout all of this, it’s vital that there be a collaborative working relationship between the legal team and the communications team. Together you can navigate the complexities of a lawsuit and execute your roles effectively.