October 29, 2020

To Pao Judge, Jurors not ‘potted plants’


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Kahn-haroldBy Marisa Kendall, From The Recorder

SAN FRANCISCO — In the cast of characters that starred in the Ellen Pao gender bias trial, Judge Harold Kahn was relegated to a supporting role.

The San Francisco Superior Court judge received nowhere near the attention paid to Pao or the three attorneys who battled in the courtroom.

Still, Kahn’s affable courtroom demeanor and his practice of allowing jurors to ask questions earned him his own small place in the spotlight. Now that the trial is over, Kahn says he was surprised to discover some of his own off-hand remarks were turning up on reporters’ live blogs from the courtroom.

On Thursday, Kahn sat down with The Recorder and discussed why he avoided reading articles about the trial, how he handled a courtroom full of reporters, and why jurors should not be treated like “potted plants.”

What was it like presiding over a case that was in the newspapers nearly every day for a month?

Not all that different than other cases. I can’t get into the substance of it, but I come to work, I have to rule on objections, I have to rule on motions, I have to greet the jury, say goodbye to them. The same functions in this case as there are in virtually every case.

Was it ever challenging to preserve order and fairness with so many spectators in the courtroom?

Once I determined that there would be no cameras in the courtroom, and that it was obvious that everybody that I saw understood that there had to be judicial decorum and were respectful, there were no issues. People were very compliant with the rules that we had. When I asked people to leave, they generally left. Didn’t have to say please be quiet. Didn’t have any problems.

Was it strange to know that reporters were live-blogging and live-tweeting everything you said?

It was. I didn’t realize that until almost the end of the trial, though. I did not understand the concept of a live blog until the case had been submitted to the jury. One of the lawyers, I believe it was probably Ms. Hermle, knowing that I have a son who is a baseball player, asked me about my son, how his recent games were. And on that occasion I said that he had a fabulous game the day before. And apparently one of the live bloggers recorded that. And my friend, who was my son’s coach also a long time ago, said, “I see your son is doing well. How are you doing?” And then the person explained to me exactly what it was. And that’s how I learned what live-blogging was.

Did you purposefully distance yourself from the media coverage before that point?

Absolutely. I wanted to have some sense of what level of coverage there was, in case that was an issue. But I didn’t really want to get into the details of the coverage, nor did I want to risk any chance of being affected by the coverage in any way. So basically I would know whether there was a story in the [San Francisco] Chronicle or not that day, but I wouldn’t necessarily read anything other than the headline.

Some spectators were surprised you allowed jurors to submit questions to each witness throughout the Pao trial. Why do you give jurors that opportunity?

Because they make the decision. They’re the ones who know what factors weigh most heavily in their decisions. And if those factors are not addressed or addressed to their satisfaction, seems to me it makes sense for them to ask questions. Doesn’t sound so complicated to me.

When did you first give jurors the opportunity to question witnesses during trial?

I think it was among one of the very first trials I did as a judge. As a lawyer I had trials where jurors asked questions. This is not a novel or new thing—I’ve been a judge 14 years. I never opposed it as a lawyer. I’ve often thought that it might be easier on people if it was just made mandatory, but I’ve certainly not been part of any effort to make it mandatory.

Do you think judges are becoming more open to the practice?

That’s my sense at a very anecdotal level.

What types of jury questions do you reject without asking?

Questions where the attorneys object and their objections are meritorious. Unless lawyers object to questions, I don’t even concern myself with it, with the one exception—if a question is framed in a very argumentative way. So sometimes, even if there’s no objection, I will refashion the question from an argumentative one to an unargumentative one.

That’s all standard practice—there’s nothing unusual about this. I’ve been doing this for years and years. I’m a great believer that jurors should not be perceived as potted plants. They have to make decisions and so they should be given as many tools as possible to make those decisions.

How do lawyers generally feel about the practice?

I have had lawyers object. I have never, or at least, I should say I can’t recall ever an occasion where I said I would not allow jurors to ask questions because a lawyer objected.

I think lawyers object for three reasons. One is lack of familiarity with the process. Two, some lawyers, maybe most, envision the paradigm as I mentioned. They wouldn’t call it “jurors as potted plants.” They would put it as lawyers “running the show.” And I think a third reason is the belief that this could create a sideshow: that the jurors don’t know how to ask questions, that the jurors aren’t competent to ask questions, that the jurors don’t have the capability.

In the Pao case, were you surprised by the number and the insight of the jurors’ questions?

No. Overwhelmingly we have thoughtful questions. We have the greatest jurors, in my guess in the world, in San Francisco. We have an incredibly smart citizenry.

So it’s typical to get so many questions during a trial?

No. The number of questions that were asked of Ms. Pao is the most I’ve ever seen asked of any witness in any trial that I can remember. But, it wasn’t by magnitudes of 10 or 20, it was probably closer to double.

In court you tend to come across as quite friendly and approachable with the jurors and the lawyers. Is that a conscious decision, or just your personality?

I’m friendly and approachable to everybody! I do decide that, but I decide that it’s my demeanor outside of court too. I decide it in court because we have these people we call jurors who are essentially volunteers. The least we can do is be kind and courteous to them, and my experience is that they appreciate it. And it makes for a more friendly experience—a nicer experience.

IMAGE: Judge Harold Kahn, San Francisco Superior Court Hillary Jones-Mixon / The Recorder

For more on this story go to: http://www.therecorder.com/id=1202722499560/To-Pao-Judge-Jurors-Not-Potted-Plants#ixzz3WMhCrn2M

See iNews Cayman related story published March 29 2015 “Ellen Pao loses Silicon Valley bias case against Kleiner Perkins” at: https://www.ieyenews.com/wordpress/ellen-pao-loses-silicon-valley-bias-case-against-kleiner-perkins/


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