It’s rare that a civil litigator achieves as much notoriety as a criminal lawyer—or the parties to a case.
But that’s certainly what happened to Lynne Hermle ’81, a longtime partner in Orrick’s Menlo Park office, earlier this year. In a case that generated intense media scrutiny, she successfully defended Kleiner Perkins against claims by former partner Ellen Pao. After 24 grueling days of trial, a San Francisco jury rejected all claims that the plaintiff was passed over for promotion and terminated from the venture capital firm because of her gender and her complaints about discrimination. The Recorder described Hermle’s cross-examination of the plaintiff as “masterful” while Bloomberg reported that Hermle’s “charismatic, intimidating oratory made her the trial’s breakout star.” The Pao trial was just one of many complex discrimination and wage-and-hour class actions that Hermle has handled for retail and technology leaders, including the Gap, Advanced Micro Devices, Williams-Sonoma, IBM, and Apple. Here, Hermle discusses the evolution of her illustrious practice. Read the full interview in the UC Hastings Magazine, fall issue.
Q: How did your experience at UC Hastings help shape your career?
A: I went into UC Hastings poor and in debt. I’d lucked into an undergraduate scholarship at UC Santa Barbara, but I spent my senior year abroad and it cleaned me out. I came to UC Hastings determined to find a job. I took excellent classes in consumer protection with Professor James McCall, in tax with Professor Stephen Lind—I’m still surprised he made the subject so interesting—and many other classes with the scholarly and intimidating professors of the 65 Club. I liked the practical approach many professors adopted because my focus was always on what will work once I practice. The most valuable information came from my first-year legal research and writing class, which was spectacularly good. To this day, I use what I learned there. I’m famous for editing excess words from briefs.
Q: How did your career in employment litigation evolve?
A: I never questioned if law was the right profession, a refrain I heard often from classmates. I knew it was right for me—all that reading, writing, and arguing. I thought employment law was interesting, full of people and how they thought and fought and interacted with others in the workplace. I lobbied for a job with the Equal Employment Opportunity Commission, but the folks there told me they would only hire experienced practitioners, and encouraged me to work for a defense firm first and transition later to government work. I began working in defense jobs, figuring that I’d move once I got experience, but I found it was a fit for me. I liked being closely connected to the business and working with management to fix processes and problems. As an extension of those interests, I went in-house at AT&T in the mid–’80s, long before it was viewed as a great job choice. I loved the business side of in-house practice. I left only when Orrick recruited me. I wanted to see if I could be a good trial lawyer, and I had the opportunity to work with great lawyers here. I thought I’d be a hideous personality fit for a big established firm, given how outspoken I am. But I was wrong.
Q: How did you gain trial experience?
A: I didn’t try any cases until I came to Orrick, although I had worked on some labor arbitrations. That was a good prequel—hand-to-hand combat with no discovery and many surprises. You learn how to think fast and cross-examine witnesses on the fly. When I came to Orrick, I was lucky enough to go to trial with two excellent lawyers who have since become judges.
Q: What’s the broader impact of the Pao trial victory?
A: I don’t think most cases impact the broader picture. Culture does not change as a result of lawsuits, period. If we want more women in tech and venture capital, we need more girls in science and math and more women entrepreneurs. Kleiner is doing some very interesting investing with women-led firms, and I think there is hope, especially because one of the key issues many women have in corporate life is trying to handle family responsibilities. Creating your own company lets you write your own rules, including maneuvering around kids and their schedules. For many women who want to lead— whether in engineering or on trial teams or in other organizations— figuring out the kids part is one of the most difficult challenges. I completely agree with Facebook’s Sheryl Sandberg that picking the right partner is crucial for your own professional opportunities. [Editor’s note: The untimely death in May of Sandberg’s husband, David Goldberg, rocked Silicon Valley.]
Q: What do you enjoy most about trying cases?
A: I like almost all of it. I believe in the jury system, assuming the judge allows safeguards like questionnaires and a reasonable amount of voir dire to ensure a fair jury. That’s especially necessary in employment cases because almost all jurors are employees and tend to identify with the plaintiffs. I like taking a jury through the story and the timeline, explaining how we got to trial. I could do without the heart-pounding wait for the verdict to be read, as I wonder if I’ve read the jury wrong, but that’s just a small piece of the adventure.