Douglas N. Silverstein

A problem for Silverstein in a wrongful termination suit was that his client, an orchestral conductor for live video game concerts, had made a move at work that was arguably grounds for firing: She had pitched a competing symphony to one of the venues where she performed shows for her current boss.

“It was true, she had made the pitch,” Silverstein said. “The boss claimed the pitch was the reason he had terminated her, contradicting the reason we gave, which was that she had become pregnant and asked for minor accommodations, such as a stool to sit on during the show when she wasn’t conducting.

But we demonstrated to the jury that he only came up with that excuse after the fact, using emails and by creating a very precise timeline to establish that his claim wasn’t credible.”

The jury saw it Silverstein’s way, which included the client’s compelling backstory of an earlier difficult stillbirth and her desire to return to work to take her mind off her loss. But that too was a problem — one that Silverstein saw coming when he carefully used pretrial focus groups to learn the effect on potential jurors of her second pregnancy.

“A lot of people felt she should have been home resting, not having a baby again,” Silverstein said. “And that was another excuse for the firing the boss used. The defense called it benevolent discrimination. The boss said he let her go so she wouldn’t lose another baby.”

Much of the trial’s successful outcome, he added, hinged on jury selection. “We were able to strike jurors with a negative attitude about her second pregnancy. It was actually a jury de-selection process. We were able to weed out people without an open mind.” Still, enough jurors harbored innate biases against the plaintiff to keep the verdict less than unanimous, but enough for a win. “The case was extremely hard-fought and the defendant refused to settle,” Silverstein said. The award, in June 2016, was more than $750,000, which included punitive damages. And the court awarded just under $400,000 in attorney fees and costs. Noone v. Jason Michael Paul Productions, BC586768 (L.A. Super. Ct., filed July 1, 2015).

“We had great facts, great witnesses; we argued the case correctly and we framed our story correctly — and we learned those things when we spent significant time after the trial interviewing the jurors,” Silverstein said. “That’s the best feedback in the world. This is the fifth trial in a row where I’ve gotten punitives. There is a way to try these things to highlight bad conduct and to get juries to send a broader message that they won’t tolerate this kind of discrimination.”

— John Roemer