people you're not right with the fit. david: it does not solve everything. doug burns thank you very much. the decision will be read on "the willis report" coming up. cheryl: coming up right now. breaking news stay with fox business. gerri: hello, everybody. i'm gerri willis. we begin tonight with a verdict in the ellen pao sex discrimination suit against kleiner perkins. this is a big big case with implications for workplaces all over the country and it's already having an effect on the tech industry in silicon valley. ellen pao is a partner at one of the most well-known venture capital firms in the country, kleiner perkins, that is the company behind some of the biggest names in tech like amazon and google. pao is suing kleiner perkins for sex discrimination. the jury reading the verdict in the courtroom in san francisco right this very minute. there are no cameras in the courtroom, but we have a producer inside who will be able to tell us the verdict on the four counts as soon as we

can report them from the courtroom. with us now two legal experts fox news legal analyst lis wiehl and mark conkel. jury deliberating 2 1/2 days. short period of time to me. what does that mean? >> usually good for the plaintiff. also in california, you don't have to have the unanimous decision, 9 out of 12 for the plaintiff or the defendant. so it's much easier than a criminal case. david: . gerri: mark to you, she originally sued for 16 million dollars, but the judge said no no no kleiner perkins may have to cough up far far more what are the numbers? >> 16 million in damages and 144 in punitive damages. so it's a really significant number. >> and punitive means that the company went above and beyond to be horrible to this woman. gerri: and some of the facts are interesting here and talking about this all week the facts being she says she was left out of meetings ski

trips in which male counterparts went. she was made to feel uncomfortable. have you other news that might bear on this case? >> that's great for the company, for her to say that. on the other hand she had an affair with somebody there at the time. one of her mentors said i'll get rid of this guy no no, no, keep him, i want him to stay here. so she also had tussles with other employees. apparently making one woman cry. there are a lot of things appearing late. gerri: here's what the jury must decide was gender a factor in not promoting pao. did kleiner perkins take all steps to prevent gender discrimination because she filed suit against the firm. >> and you don't get to three and four until you get to one and two. >> maybe a certain agonizing with the jury. a classic case of where there's smoke there's fire.

she has maybe not unclean hands but participating in not so friendly behaviors in the office. there's the tryst in the office. gerri: let's talk about gender for just a second. six men, six women. the judge i believe is a man. does this kind of thing matter, and can you predict anything that a jury might do because of the gender. >> no too easy to do, that's a stereotype because you think women are going to go for women, and men are not going to do that. i haven't seen that to be true in cases. gerri: what typically happens is the women go against the women and the men are more sympathetic. >> we know that's really in rape cases for example. women are generally harder to women that's a proven fact. gerri: just a second, we have the jury is now entering the courtroom? sorry? yes. the jury is entering the courtroom. we're going to expect an answer to this situation in short

order, and as soon as we get this information, we'll bring it to you. the judge is speaking probably giving instructions to the jury would be my guess? that's typically the way it works, and, of course we'll be discussing as we wait for all these details two. counts of gender by atwo counts of retaliation. have juries been sympathetic to claims of gender discrimination? >> yes, in 1989 remember the price waterhouse case. it would be a groundbreaking case for or's discrimination. >> the jury's ruling in favor of plaintiffs in situations like this and to the point we're making before where there's smoke, there's fire, juries say look, enough stuff thrown up against the wall, if bad things happen to the person we're willing to attribute this to that culture.

gerri: kleiner perkins said 20% of senior partners are women. three times more than the industry average. it argues that maybe they aren't discriminateing. >> and the numbers are nice but doesn't stack up to pornography jokes and all-male outings. >> and all-male outing that only males can go to obviously if she's left out of the things, those are business-producing things that's against her interests. gerri: and that's often where business gets done, on the golf course, on the ski lift people have the serious conversation. >> back to the price waterhouse case, this was a partnership was withheld from a woman, and she said her personality didn't quite fit in but she was a high performer. that mirrors what's going on here, they said her personality didn't quite fit, but she was apparently a very high performer. so i'm sure she's using, counselor is using this case

from 1989. a supreme court case. >> that language is described as code for sex discrimination. gerri: talk about the impact business ones, we know silicon valley, notoriously male and pale, lots of claims women aren't taken seriously. do you think it might have broader ramifications. >> absolutely. if this case comes out. if she gets what she wants with 16 plus 144, huge ramifications, all the employers in silicon valley have to look at numbers and sats about how women are stacking up in the greater leadership position. >> not just silicon valley, that's a suitable candidate. look at wall street and other industries that are traditionally male where business is done in a lot of social environments where women don't feel welcome. >> certainly with the all-male retreats. gerri: we're getting flashes of news here. gender not a reason, we're hearing that kleiner perkins failed to promote.

gender not a reason. sounds like she's failing here. i know we've got four different counts here. that would seem to be important. >> you don't get on three and four of the counts unless you get to one and two. one is discrimination no to that. two is retaliation, we'll hear about that you don't get to three failed to take steps -- gerri: stand by gender was not a reason she was not terminated because of gender. she was not terminated because of gender. that seems to be a critical and important decision. >> and really the centerpiece of the case. make a good point about retaliation. the discrimination law is when somebody makes a complaint and god said there was no discrimination, a jury can decide. you can retaliate against the employee for making that complaint. >> let's see about the retaliation, the second key, that is important here. if they say no to retaliation, we don't get to the third and fourth count. gerri: waiting for more

details. they did not, did not retaliate her. >> that's it she's done. you don't get to three and four, she's done. gerri: what would have been the turning point in this case? when i started, this is fast. they deliberated on this quickly. got done quickly. they must have found real consensus in short order. >> they, did obviously. but against her. they found that she was not retaliated against and discriminated against, she was not fired because of gender she was fired because of something else and i think the something else is what we were trying to lay out is made other people cry, was late had the office tryst. all the things. that was enough. gerri: she had degrees from top ranked law schools. >> great. gerri: very well prepared. that's not what you need at kleiner perkins necessarily. a lot of people have that. mark, what do you think was the pivotal piece of information, evidence, that the jury would have considered that made them

come out so strongly in this way? >> what you're look for is the direct evidence, the smoking gun. gerri: there was none. >> her lawyers did a great job of painting a culture that was predominantly male. it's not enough to have the opportunities to. win her case she needed to prove the reason she didn't have the opportunities is because of gender. >> versus something else. >> the piece of evidence would be the thing that links whatever bad thing happened to her to the all-male culture, she didn't have it. gerri: lis, you are another woman sitting at the table for me. what does this mean for us in the workplace? >> i don't think her case can be taken for all of us in the workplace. i'm narrowing it. it's narrow in the sense if you're a woman and complain or discriminated against and you have nothing more than there were trips that were taken and that was it, and against her, all the other things that really were performance evaluated, having a tryst with

someone in the office and trying to keep that person from being fired, that's problematic. gerri: mark? >> you know, same kind of thing right? she's got whatever evidence she has of a certain type of environment. but again it's the linkage between her jenneder and the environment. >> and the other thing is most companies, most companies say go to hr if you are discriminated or retaliated against, go to hr go through the process. that didn't happen. she got fired and this all came in. versus if she had been going up the ladder and saying this is bothering me this is bothering me. gerri: the reality is these decisions typically get settled out of court. what does it tell but this case that it got this far? >> one thing it tells me is that the parties believed what they believed. this party is willing to go all the way. she wasn't looking for the payout. whatever happened to her at work was the result of gender. >> from the defendant's side they felt we can't settle this case for a nuisance value, a

few million and let this happen because all the other people are going to come forward after that saying the same thing. >> the floodgate phenomenon. gerri: what does it mean broadly for sex discrimination suits, does this put a chill on them? >> i don't think so. >> i don't think it chills, not one verdict like this. i think it is a cautionary tale, and employers have known this for a long long time. you have to look at the cultural. they won the trial. >> they eked by. >> but they spent a pretty penny winning that trial. the drain on business. >> millions on lawyers. >> and where did the case come from? the ammunition that they gave her in the form of the male dominated culture. gerri: i'm fascinated by this and wonder if there will be other ramification. the reality is sex discrimination suits are science right? people sue assuming they're only going to get this amount. it's almost an overused

complaint in the workplace. >> there are real sex discrimination cases that should be brought absolutely. gerri: sure sure and this obviously, according to the jury was not one of them. >> clearly not. >> well clearly, but it did take 2 1/2 days and didn't have to be unanimous. clearly might be just eking by. gerri: i think we're getting live pictures from the courtroom right now. we're going to bring them up as soon as we can. there we are. those are live pictures from the courtroom where the jury has just decided that -- okay, more details from my producer who says ellen pao may walk out, may talk to the reporters standing there. we will have that when she does. that but here we are right in san francisco right now. this case just decided. >> you realize gerri, she did not get a penny now. she's walking out without a penny from this. gerri: and that raises questions what's next for her, right? any time you launch this kind

of suit, this dramatic against the people that you ultimately want to work for, you're putting so much on the line. your own future, your own future earnings right, mark? >> absolutely right. and one of the things i notice in lit gaith these case not only putting material things on the line but at the end of the day plaintiffs are investing emotionally. when they go this far they've invested emotionally and personally in the case. this has become a part of her identity at this point. that may be the next step. >> oh, the book, contingency fee? >> yeah. >> she's not out a lot of money for attorneys fees if they take it on contingency basis. gerri: the jury didn't just say no they said hell no. >> there was wiggle room in the jury instruction. >> yes, there was. >> they found discrimination but not retaliation and there was discrimination but it didn't matter. in other words, that it wasn't predominant factor.

>> they just said no. >> not at all. gerri: we're waiting to see if ellen pao walks out of the san francisco superior court room where she's gotten bad news. gender not a reason for firing from kleiner perkins. probably the most prestigious venture capital firm in silicon valley. well known started companies like amazon like google. this is a power really truly in silicon valley that is responsible for so many start-ups over time. she went up against the man and lost badly. would love to hear from her and see about what she has to say lis, i'm sure you are eager. >> she went with this with her heart, this is what she believes. she may have been discriminated against some settings but that didn't amount to a legal lawsuit for her to win, and that's got to be devastating. gerri: we're waiting to see if our producer comes out as well. she's been inside the courtroom.

heard every word that's said in the courtroom. can come out with the details. waiting to hear from elka worner, what details she has heard inside this courtroom. is this something can you expect, kind of a lengthy set of facts to come out of this? >> yes, what may be taking place behind the doors is that the judge is going through the jury one by one, do you agree with this verdict? do you agree with this verdict? that's what's taking the time. everyone is sitting there behind counsel table very quiet and just looking at the jury and having the jury say yes or no as they go one by one by one to the jury. it's not unanimous in california, doesn't have to be. so there may be with the 12, there may be 3 that say no. i don't agree with this. gerri: that is california law, you got to wonder if this had taken in some other state of the union what would have

happened. >> this is civil not criminal. not beyond a reasonable doubt burden here. it could be not just california but other states as well. >> even unanimous verdict the bar would be lower because you don't need the entire jury to unanimously agree, you need three fourths of them. gerri: and, of course, we're continuing to wait here. hopeful that ellen pao, who brought this very important suit against kleiner perkins gender discrimination. the jury turned her away, said no gender was not a reason for firing from the venture capital company in silicon valley. probably the best known the most famous venture capital firm in the region. we're waiting also for arthur aidala. what is your reaction to this decision? >> everything your guests said is accurate. so the burden of proof is lower. it's not beyond a reasonable doubt. it's a preponderance of the evident, that makes it easier for the plaintiff, and it's not

a unanimous jury it's just a majority. so that makes it easier for the plaintiff. and yet she couldn't make those minimum thresholds. so it shows the jury felt her claims were hollow would be a nice way to put it. there are rougher ways to put it she didn't meet the burden of showing she was treated the way she was because of her gender. so obviously the venture capital firm is breathing a sigh of relief. gerri: what does this mean for future gender discrimination suits? >> i wasn't that surprised. gerri when we went over it yesterday, there were statistics that the firm had in terms of the percentage of women they had in leadership roles and how high that was compared to other venture capitalist firms, and just -- i'm not shocked.

you really need to show some hard examples of somebody who was there the same amount of time she was, and a male was promoted ten times above her, and i don't believe she had anything to share like that. an employer could have 17 reasons why he chose somebody over her to go to al gore's house. and i don't really -- david: arthur let me interrupt you for just a second. we have information from the jury room. gerri: the judge is polling each juror as lis said, judge polling every juror to get their individual verdict, and as you were saying, of course, it doesn't have to be unanimous. and i have to ask my producer are these live shots i'm looking at right now? okay. we're still you just saw pictures on the right of ellen pao, that's what she looks like that is the woman who brought the gender decision to suit against kleiner perkins. we're waiting for her to come

out in front of the scrum of cameras and talk about reflections of the case. in the meantime we have a producer in the courtroom who will likely come out and tell us as well what she heard. the details of what the jury had to say for itself. what the judge might have said in addition. >> yeah, she was hammered on the stand. she was asked about her financial motives, she's going to make money off of this. she said she's going to make a multimillion dollar windfall. the way the firm painted her is she was out for team ellen, she didn't want to play for team kp, she wanted to play for team ellen. venture capitalist was saying she wasn't in it for the firm she was in it for herself. she didn't get along well with people. gerri: we heard yesterday that the jury was able to ask questions, which is highly unusual of her directly, and asked scores and scores of questions directly and also

we're hearing that they ask for individual answers to be read back to them. they wanted to review what she said. >> right, exactly. gerri: which is not surprising. >> not at all. and you counter that with what the firm said about her actions and the way she behaved in the office, and you really came up with no smoke gun for either side. gerri: the statement on her, which i find illuminating. she was given every opportunity to succeed ellen pao failed for one reason and one reason only, view from skill and performance were far different from what they were. sort of a damning thing. that's what you expect from the attorney. >> exactly what you would expect. as a defense strategy that's exactly what i would have done any good lawyer would have done. you own it you don't say look there were some unseemly conduct. >> we're not going to talk

about that. >> we had a legitimate nondiscriminatory. >> here they are, bing, bing bing. >> and tarred her with that brush. in the face of a defense like that, you said no smoke gun i said no smoking gun. tried to introduce evident the way other women were treated. that is not going to win a case like, this you need evidence. >> there's a burden it is a lower burden beyond a reasonable doubt but it's preponderance of the evidence. gerri: one of the things the jury wanted read back is kleiner perkins comments she didn't have the right genetic makeup to be a venture capitalist. >> maybe she sued for the wrong thing. >> that's not a good thing for the venture capitalist. if you say that not the right genetic makeup, that's like the president of harvard larry summers saying well there

aren't professors in the sciences because women aren't willing to put time into it they want to go home and stay with their family. gerri: they wanted to read back her 60-day performance review. that's not surprising, what they wanted to understand was what does the woman do in her job? >> that's a critical factor. not like the firm retroengineered the reasons they were able to document the same time the problems existed that recorded exactly those problems. gerri: is arthur still with us? arthur adella. do we have him? we lost him. we'll get him back. here's a reset if you're wondering what's going on. we just got the decision in an important sex discrimination case against kleiner perkins the most important venture capital firm in silicon valley brought against by ellen pao, former worker former employee.

mba and law degree from harvard. no shlub, she had a great education, and kleiner perkins, of course as we talked about saying she was given every opportunity to succeed and she did not. she sued for gender discrimination she had compelling facts on her side. what happened to that? >> and she said, the firm said look the things she's talk about are mere distractions and said no they were more than distractions. the fact i wasn't able to go on the all-male trips. the jury said that did not compute with gender discrimination or retaliation for the reason you were fired. >> attorneys did a pretty good job of painting the male driven, macho culture, whatever it is. they couldn't fundamentally link in a causal way that culture to anything specifically happened to her. >> and the blots against herself, having affair with somebody in the office. gerri: never a good thing. >> never a good thing, and not

getting along well with co-workers. gerri: we saw a picture of ellen pao and john doerr, legendary founded the venture capital firm well known beyond silicon valley. interesting to see. the woman going up against the man fighting the titans of that interstate. >> doerr guided and supported her in the organization for many years. when she had the tryst, he offered to fire the guy and she said no. gerri: we have elka worner on the phone line. she has been in the san francisco superior court. i'm curious if ellen pao is even in the courtroom. >> yes, she is. she has not been here for the majority of the deliberations, but they gave everyone about 45 minutes including her attorneys and the kleiner perkins attorneys to get here,

and she arrived smiling walked in confidently. she usually sits between two of her attorneys, but as they started reading back the verdict she wasn't smiling. the judge asked the jury to go back and deliberate some more on one of the counts which is the kleiner perkins retaliated by firing her, 8 of the jurors said no, they did not. 4 said yes, and that is not sufficient to reach the verdict. this is a bit different. in civil court of california, you have to have three quarters of the jurors agree, it doesn't need to be unanimous. they're hung up on that and the judge would like them to go back and deliberate. obviously, the main points kleiner perkins did win that they did not discriminate against her based on gender and they did not retaliate against her after she complained. there were two jurors

african-american woman and african-american man who said yes on all those counts. but given that we don't have to have a majority all the other jurors said no discrimination. gerri: can you tell us more about this one count that they're hung up on here? i'm not sure i quite understand it. what are they still considering? what are they told they have to go back and deliberate more on? >> they have to decide and, you know, talk amongst themselves if kleiner perkins retaliated against her by firing her when she brought up all these issues about discrimination, when she was on the 60-day plan to see if she could improve her performance, and eight of the jurors said no, kleiner perkins didn't retaliate against her by firing her and four said yes. hopefully there will be some kind of resolution to the one point that she is suing on.

gerri: elka, is that the point that carries with it a maximum of punitive damages of 144 million? >> well, she could get some amount of money for that but i think the main ones that kleiner perkins discriminated against her, if that's not proven. i'm not sure how much they can get in the compensatory damages on this one particular count. they will come back and decide on that, and the judge will ask them what the punitive and compensatory damages may be. gerri: so this goes on. we thought answers were all in the bag and it was all over, but frankly there is more to be decided here. what was the demeanor of the jury? what else did they have? how did they look? what did they seem to be talking about, thinking? >> they looked very, very

serious, they came in the judge polled each individual juror to make sure he had everything correct. an interesting thing about this trial is that jurors were allowed to ask questions of witnesses when they would do is they would in writing submit their questions to the judge, and the judge would ask some of those questions, and some of the questions they asked were to pao specifically why didn't you just leave, and when did you come to the conclusion that gender discrimination was a widespread problem and weren't isolated incidents? and then they asked things like did you think some of the senior partners were insensitive? they were very active in this case. we had about 26 witnesses, it was a month-long trial, you had a jury evenly divided between six men and six women, and they

were -- one was an artist another was a prison nurse one was a b.a.r.t. station manager and a mid-level female executive that worked in the silicon valley. so it was a very diverse jury. gerri: a very diverse jury and of course, right now, in case you're joining us, looking at pictures from the san francisco superior court where we're getting a resolution of the discrimination suit against kleiner perkins silicon valley's biggest venture capitalist firm. we're waiting to see if the attorneys come out and possibly ellen pao herself. she had to take questions from the jury. how did she seem when she did that? were you on hand for that? did you get a sense of her confidence? how she came across? >> i heard she came across very well on direct examination, she was confident, and then when she was being questioned by the

kleiner perkins attorneys, she kind of answered like yes, and a little bit annoyed and saying yes with a hissing s and lost her train of thought from what i heard, and she has been pretty actively involved sitting in on every session. she was here the first day when the jurors were deliberating about half the day, but hasn't been here since. but she's always smiling walking in confidently, and today i'm sure a big blow to her with this verdict. the last item is probably not as important as the discrimination one because that was the big one, whether they discriminated on her based on gender. she was saying that was the culture at kleiner perkins. she couldn't advance because she was a woman. they treated men differently than they treated her, so you know, it was kind of her word

against kleiner perkins and the witnesses say that. gerri: that's a very big windmill to tilt at if you know what i mean kleiner perkins is the most important venture capital company possibly in the world, certainly in silicon valley, absolutely in the u.s. elka, how did the company come across to the jury do you think? would it be easy to seem as if they were a big faceless company with no emotion. was that the case? >> they had one of their top venture capitalist partners on mary meeker. when she came on and said this is one of the best places to work in the silicon valley, you know, maybe that resonated with the jurors. and the court watchers said there was no huge smoking gun where you are like yeah, they definitely discriminated against her because she was a woman. it was small incidents here and

there and the kleiner perkins people said that pao blamed everyone else for her shortcomings in the company and she had john doerr to mentor her, and in the end, it was her performance -- >> that drove in the pressure. a money manager, financial adviser himself and ed i know like you do i know mary meeker, she has an interesting history on wall street, and i assume a partner at kleiner perkins, talk to me about what you make of what's gone on here? >> well i mean having mary meeker was brilliant from the defense side because mary will just call it as it is. mary say senior partner there, and she does a great job. it's really interesting, i represent a lot of people at different venture capital firms.

people were taken back by. this nobody thought about gender issues anywhere in the venture capital world. most of the people i talk, to a lot of conversations around this characters no one sees it because firms will pick the best people. they have two jobs at a venture capital firm, raising money from institutional investors and hoping to find the best companies, and if someone is performing, guess what, gerri they're going to bring the money in. gerri: people thought of it less as vc and more like hey, you're in silicon valley, the heart of tech land. generally male and pale and kind of a playboy's paradise really? this is a world where people worked around the clock with a lot of guys with tech experience working in fields that are typically male dominated. >> yeah, i got to tell you, i've been there many times and i have yet to see more men than

women walking around and work. they find the best people, and obviously, this lady had a great background there's a lot of other people with similar backgrounds. the question is was she performing and doing her job because as kleiner and others, it is results matter. if you can't provide the results you are going to find yourself out the door. >> exactly. that's why they found no discrimination based on performance. the reason they're hung up on the retaliation which is different, is after she said, after she complained about this basic, then they retaliated by firing her. that's the key issue that the jury is going back to. not the discrimination at the time but the retaliation after she complained. >> they're exposed to just as much risk now as they were 35 minutes ago. >> because of the retaliation. >> the damages are the say. if there's no discrimination, there can be retaliation if

employer takes adverse action for making a complaint. >> four counts one is out, two the retaliation is still on play. three is out, that's because that has to do with discrimination, and four on play because it has to do with retaliation. two of the four counts are still in play. gerri: and again, talking about the issue of gender discrimination. we're awaiting the attorneys, maybe ellen pao herself to come out to the scrum of reporters and cameras to talk about her experience in this. the attorneys to talk about reactions to what's gone on. it ain't done yet, folks, we're hung up. the jury asked to deliberate on the issue of retaliation. did kleiner perkins retaliate against ellen pao when she made accusations that the company was discriminating against her because of her gender, mark? >> and the law works that fay for a commonsense reason. we work on the defense side. the law says can't suffer

discrimination, you can do that in a variety of ways including on sex or gender that's this case here. the law protects the right of employee to complain internally and say i think i'm suffering some form of decision to and the law protects the right to do that. if you punish that employee for making that complaint, that is equally a violation of law. there is no underlying discrimination, but there was retaliation. >> but the complaint is meritorious or not, you cannot retaliate. gerri: okay jury still deliberating, we're still waiting back word what they make of the issue, the retaliation, did kleiner perkins retaliate against ellen pao because of claims of sexual discrimination and complaints. if they come back and try to harm you in some way, take away your job, that's just as important as the claim in the first place, obviously what we're learning here.

ing necessarily anyone to come out. i think we're still waiting to see if we might get some word from the attorneys, from ellen pao herself but as we look at this and think about long-term impacts of this what do you see? >> well if it really comes out she wins on no counts not even on retaliation, it doesn't matter if the underlying discrimination is theirs, it's meritorious, it is much more likely for women to bring gender lawsuits without a quote, unquote smoking gun. gerri: you got to have more than the fellows went out and went on a ski trip and didn't invite me. what would prove it? >> you know somebody saying something like i think the genetic makeup. that's a really good one for her, but things like that add up. gerri: explicit. >> the problem with this is her

own behavior. to have the tryst and say to her mentor who is beloved. don't fire him, keep him on. that kind of thing, and not showing up for work or showing up for work late or make another co-worker cry, that kind of thing adds up and does not help a plaintiff's case. >> that's exactly right. you don't need a smoking gun to win a discrimination case, you can prove case as a plaintiff with circumstantial evidence. what they had here was quite a bit of circumstantial evidence. painting a bad picture. what they had just as you point out was this record of employment where her own performance her own behavior was spotty. a marked record as they would say, and that convinced the jury. gerri: i want to bring back in our producer here, elka worner, following this. sitting in the courtroom this afternoon. how long the jury has to deliberate, more on this question of retaliation. it took only 2 1/2 days to get

to the kinds of answers they already reached. how much longer might we be waiting? >> you know the court people told us they are prepared to deliberate as long as they need to. the jury is working until about 4:30, 5:00 p.m. california time, and they're very comfortable. they come on deliberating through lunch i think they may try to resolve this through the weekend. they don't have to come back monday on this one. >> and it's not likely they would go into saturday and sunday either, they don't do that in california, do they? >> they do not deliberate over the weekend. gerri: the likelihood is they're going to have an answer tonight, right? >> that's what the judge is hoping, and that's what the attorneys are hoping and just

resolution to the entire lawsuit tonight, and then we can hear from the attorneys that help pao and the jurors and get their thinking on this. gerri: have you heard that the jury is asking to see any more of the evident again to hear any more of her answers to the long q&a she had directly with the jury. are they asking for that material over again? >> no the only thing they asked for today was the comments that ellen pao didn't have the genetic makeup to be in the world of venture capital.

>> they're not going to want to be there monday. >> behind our time. only 2:40 out there. at least to 5:30 i don't think this jury wants to come back on monday. you're seeing the lawyers and the plaintiff coming out now because there is still this count that's out there what's happening right now in the jury room. in fact, the majority of jurors found there was no retaliation. it wasn't a sufficient number. you need the three fourths of the 12 to find there was no retaliation. you have a bunch of pro -- i should say, sort of pro defendant jurors in that deliberation room right now -- >> trying to squeeze what juror -- >> to play 12 angry men. >> there are people trying to convince other people to see it their way. >> i feel bad for that juror. >> i'll throw salt in this wound. we have a huge story breaking in

italy. amanda knox her murder conviction was overturned. her murder conviction overturned. >> that is a surprise for me. i thought she was going to spend the rest of her life in seattle and never come out of seattle. if she left this country, she could be extradited. if they overturned when the lower courts had upheld it, it's surprising. and amanda knox is a free woman now. >> this is a big day for women in courthouses, i guess is what it boils down to. i want to get back to the case we spent so much time talking about tonight. i think women in workplaces all over in the country are listening to this and trying to find the take away. what is the takeaway for women working in professional settings? this is a woman who had a premierepremier education. harvard undergrad. business degree from harvard.

what's the takeaway here? >> for working women, look, the jury found a jury of ordinary people found there was no discrimination. >> legal discrimination. >> in fact, you took the words out of my mouth. >> there's the law on the one hand and the real hand in the other hand. part of what the plaintiff has done here is raise awareness of the kind of culture issues we talked about on the show. women have a legitimate expectation to not work in an environment with that kind of culture. >> another woman who made this case might have won this case. if the things we've said about you know the -- you know the tryst and all that, if that hadn't taken place she may have won the case. there were too many things slammed against her that hurt her. >> that's the biggest takeaway, win or lose a giant spotlight was shone on that -- forget the liability at the end of the lawsuit and what a jury may say,

you'll find -- >> no men's only. >> i sold ellen pao short on her education. mba and law degree from harvard. undergrad from princeton. think about that. >> i feel like a schlub. i got my law degree from harvard. >> but looking forward here, it's obvious that probably in short order, in a couple of hours, we'll have a total response a totality of what the jury had to say in this case. we'll have a clear idea of what women need to think about going forward. >> if they find retaliation, she could still win money. because it's not the discrimination that they have to be for it's after she complained and was retaliated against which companies can't do. >> just as much as discrimination. >> exactly. >> if you're tuning in tonight. we've been following the case of ellen pao who brought a gender discrimination suit against

kleiner perkins probably the biggest venture capital company in the country and certainly in silicon valley. it's brought companies to market like amazon and google. they've been at the center of technology innovation in this country. ellen pao one woman, albeit an educated woman bringing a suit for gender discrimination. look, i'm not getting fair treatment. of course, this is exactly what the jury has been talking about. what they've been debating for two and a half days. they've come back and said there was no discrimination. and that is certainly a big headline tonight for women in the workplace. right? >> absolutely. i want to say to women in the workplace, just because this headline, because of this case, don't think you can't bring a discrimination case if you've been discriminated against. there were a lot of things in this case that went against the defendant or the plaintiff in this case. that may not be your case. consult a lawyer if you think you've been discriminated against. don't think this is the end all

or be all for you. >> consult a lawyer or report an internal complaint. >> that's not something she did here. that's a significant fact too. in other words, i'm sure the question was running through the minds of jurors, why don't you mention it if it bothered you so much. >> let me put something on the table. as a professional woman who has been working, the last thing in the world i would ever do is bring a gender discrimination suit. no i might not complain internally. from my point of view if that's the culture, i won't impact it. i'll go somewhere where i'll rise and my talents will be valued. i want to work. i don't want to sit around for the rest of my life and write off bed pieces with gloria stein. i'm interested what i'm doing. do you understand that point of view? >> absolutely. if you don't get retaliated against your employer. somebody else will say, well she's that woman that brought the suit. >> exactly. you'll always be labeled with that. >> that's right. the discrimination at that point may be subtle.

not the smoking gun evidence. you had been excluded and that kind of thing. look and perhaps you make an excellent point. maybe the biggest takeaway for silicon valley and wall street is you'll lose talent if you tolerate these kinds of environments. >> that's a good point. leave it there. take a break. covering this case. awaiting a final, final verdict in the ellen pao case against kleiner perkins. more after this break. stay with us.

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for all the confidence you need td ameritrade. you got this. ♪ >> welcome back to the willis report. we've spent the entire hour covering jury deliberations that seemed to be close to concluding in ellen pao sexual discrimination case against the big venture capitalist firm kleiner perkins in silicon valley. we just understand that the

remaining issue out there which is retaliation did kleiner perkins retaliate against ellen pao for bringing the complaint of gender discrimination? apparently the jury is kind of hung up on this. right? 8-4. four in favor of kleiner on this retaliation issue. the jury needs -- the judge says we need at least nine people to go that way. as you said we're coming to air they're squeezing one person. >> i would not want to be that person in the jury room. but they're trying to squeeze one person to come over to kleiner to find no retaliation. the retaliation is different from discrimination. you cannot be discriminated against. but if you make the complaint that you were discriminated and they retaliate that's illegal as well. they're fighting about it. i feel sorry for that one jury. >> is this common? i mean, you guys have had so much experience. >> sure. it can happen.

and juries can hang on an issue like this. like you've said, there's one very unfortunate person in that jury room getting worked on by everybody else. >> my heart isn't going out to them. i'm thinking about ellen pao and what she's thinking about. where her head is at and wondering, you know, was it right? i'll always be known as the person that brought the suit and lost the suit. >> we talked about how plaintiffs -- she is invested emotionally in a case like this. in a real way, i wouldn't be surprised. not that i can read minds. to learn she's served the mission she set out to serve. what she's done -- she believed so much. shone a spotlight on a culture that she thinks is unfair to women. she's succeeded in that. >> absolutely. which is true. and yet does it rise to the level of discrimination for the lawsuit and that's what didn't with this jury. >> here's where we are. we know according to this jury,

the company did not discriminate against ellen pao in this case. there was no discrimination. but was there retaliation because she brought a claim of discrimination? that's what we're trying to find out. the jury goes 8-4. for the employer. not for the woman bringing these charges. and the judge says hey, jury, i need one more person. i need it to be nine, not eight. >> got to go back. now, 8-4, not unheard of that the dynamic can change completely. >> what do you mean? >> it could become 9-3 for her. you brought up 12 angry men. it does happen not just in movies. >> there can be radical reversals. i suspect what will happen, one person to get home at 5:30 today will cave. >> there's a prediction right there. if you're joining us, we've been talking all hour about ellen pao and her case, gender

discrimination against kleiner perkins. very famous. brought companies like google and amazon to market. played an instrumental role not just bringing companies to market, but helping them position themselves. find the right employees. been mentors to generations of tech companies that have come of age in silicon valley. it's interesting. the mary meeker thing was brought up. i'm very familiar with her. she was an internet analyst. she was investigated for research abuses. importantly she said that kleiner perkins is a great way to work. she's been in the public eye in a good way and bad way. >> my guess one side the other puts on the other thing. the jury kind of discounts everything and we just look at -- i think they really look at her testimony. ellen's testimony. >> and kleiner perkins attorneys

characterized that as mere distraction. what she he needs to demonstrate is that causal connection between whatever evidence she was putting on and the adverse employment action the bad thing with res employment that happened to her. >> exactly. >> what happens if they can't come to agreement on this? >> you know, because they came to agreement on the first count fairly quickly, i'm not sure because they have to get home for the pool in the afternoon. but my guess, they will come to an agreement tonight. >> you think they'll come to an agreement tonight. technical if they didn't, will they have to come back monday? >> yeah, sit down until you're done. they haven't finished the job. talked about discrimination. now they have to find, well, she wasn't discriminated against. but was she retaliated for bringing this complaint. even talking about it. >> let's say this jury ultimately decides that kleiner perkins did absolutely nothing wrong.

>> legally. >> but the reality is they spent a lot of money trying to prove this. >> both sides. >> who picks up those costs? >> well kleiner perkins does right? it was probably done on a contingency. the plaintiff may have had to front a little bit of money. the paycheck would have been a favorable verdict. >> that's rolling the dice. >> that's rolling the dice. that's what i was saying earlier in the hour. the instructional tale for employers. not good enough to say, hey, we think we can look clean and come out smelling good at the end of the trial. if you condone behaviors at hands of would-be plaintiffs ammunition. i'm not dismissing her case necessarily. what you're doing is you're buying a lot of attorney's fees to defend yourself in a lawsuit potentially at trial. >> just to go to the attorney's fees, kleiner perkins if they win completely, they can go back to the plaintiff and say we demand our attorney's fees. they can go to the jury, i'm sorry the judge --

>> and expert witness fees too? >> they could ask for everything. >> but that would be extremely rare. the judge would have to find that the case was utterly without merit. that's not this case. >> i want to remind people what they had to decide. they had to decide was gender a factor and not promoting. and the answer is gender was not an issue. >> right. >> was she fired because she was a woman? the answer again? >> no. >> did kleiner perkins take all reasonable steps to prevent gender discrimination. >> that one, we do not know. on retaliation we do not know. one discrimination they said no. no discrimination. two retaliation that's still out there. three, failed to take reasonable steps to prevent discrimination. they didn't find one, which is discrimination. they're on the fourth count. kleiner perkins retaliated by firing her. the retaliation is still in

play. not the discrimination. >> i look at this. i think women are thinking, what does this mean for me in the workplace. is there something to learn about this? >> report to hr if you feel discriminated against. make sure you do that. make sure you have that record. note everything. go through the channels in the company. >> and mark to you, do you think this is the biggest gender discrimination suit that we've ever seen? >> well, i guess there are different ways of measuring size. right? we'll see if the verdict is in favor of the plaintiff on the retailiation counts. i'm pretty certain it's not the biggest number. prior to water waterhouse. top ten. easily top five in terms of publicity. >> yeah. and i think that a lot of people are paying attention. it's not just women. i mention women in the workplace. it's hr people.

women running companies. should be. >> there are basic things that could be learned. you don't have just mail only functions. including this. were you know businesses are going to be like okay, you know that they will have that. make sure that you include the women on par with the men. gerri: there were interesting details like that folks that kleiner perkins thing that you don't have this. >> what does that mean? >> it means that you don't have these internal dispositions to hack it in this kind of an environment. we use the word genetics about this it is deeply affecting. gerri: thank you guys so much for coming on tonight. we appreciate your time.

what we have found is that ellen was not discriminated against. tune in to fox business, thank you for joining us. "making money" with charles starts right now. charles: a tough week ending with a glimmer of hope. but first we have breaking news a verdict reached in the case of ellenmac, a lawsuit against kleiner perkins. the venture capital firm of gender discrimination and retaliation and a big win for this business. saying that she was not a substantial reason of gender for her to be promoted to senior partner. she claimed that the mail but dominated firm discriminated against her. our producer is standing by at the courthouse with the latest