Silicon Valley sexism? Case may not provide an answer

Scott Cohn, CNBC Special Correspondent
Ellen Pao, center, leaves the San Francisco Superior Court Civic Center Courthouse with her attorney, Therese Lawless, left, during a lunch break in San Francisco.
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Former Kleiner Perkins Caufield & Byers junior partner Ellen Pao is seeking tens of millions of dollars in damages from her former employer for sex discrimination. But the eventual verdict now being deliberated by a six-man, six-woman San Francisco jury could be at least as complex as the gender bias issues the case has highlighted.

Pao alleges that the powerful venture capital firm held her back from promotions and other opportunities because she is a woman, then retaliated against her when she complained in 2011, and fired her when she filed a lawsuit in 2012. But rather than simply answering yes or no to those questions, the jury must fill out a seven-page verdict form with more than 30 questions. It could easily lead to a muddled verdict that gives neither side a clear-cut victory.

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It also means that when the verdict is ultimately read in court—and instantly reported and tweeted around the world—it may not be what it initially seems.

For example, the jury could answer "yes" to the first question on Page 1—"Was Ms. Pao's gender a substantial motivating reason for Kleiner Perkins' not promoting Ms. Pao to senior partner?" But jurors could also answer "yes" to this question on Page 5: "Would Kleiner Perkins have failed to promote Ms. Pao anyway because of her poor job performance even if it had not also been motivated by gender discrimination and/or retaliation?"

Jury deliberates in Ellen Pao v. Kleiner Perkins
Jury deliberates in Ellen Pao v. Kleiner Perkins

In other words, the jury could find that Kleiner Perkins discriminated against Pao but that it didn't matter in the end.

That verdict, if it were to happen, might bolster the broader arguments about sex discrimination in Silicon Valley, but it would back the firm's contention that Pao was a poor performer and not representative of the problem. More important, as far as Kleiner Perkins is concerned, is that it would bar Pao from collecting any damages.

And even if jurors decide it was sex discrimination or retaliation alone that hindered Pao, they must also answer questions like No. 5 on Page 1: "Was Ms. Pao harmed?" If the answer to that and similar questions is no, it could render Pao's demand for damages moot.

It is also up to the jury to determine the amount of damages, if any, that Pao should collect. She is seeking approximately $16 million for past and future lost earnings, and potentially tens of millions more in punitive damages. But even that part of the verdict is enormously complicated.

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For the compensatory damages, jurors are asked simply to fill in the blanks for past lost earnings, future lost earnings, and the total. It is up to the jury to decide the precise amounts.

In order for Pao to collect punitive damages, jurors must answer yes to the final questions on the form, asking if the firm acted with "malice, oppression or fraud" in its dealings with Pao, and if one or more of the senior or managing partners were involved.

If the jury answers yes, the trial moves to a second phase with testimony from experts on both sides, and a new round of jury deliberations to decide the amount.