Elizabeth Holmes Can’t “Fake It til She Makes It” in the Courtroom. She’ll Have to “Show It til She Grows It”
Can you “fake it til you make it?” Not in the courtroom. There, you must “show it til you grow it.” And Elizabeth Holmes is about to experience that firsthand.
Elizabeth Holmes will enter a federal court next week and attempt to defend herself in the criminal case against her. Prosecutors will have to prove that she committed fraud and conspiracy when she claimed the technology she had developed could perform blood tests more easily and efficiently than ever before. In order to succeed prosecutors will have to prove that the claims were false, she knew they were false, and when she made those claims she “intended to deceive” investors and potential clients/customers.
Trial watchers believe that one of her defenses will be that Silicon Valley is a “fake it til you make it” culture where “puffery” is fair game. (Her more recent defense, that she was the victim of a manipulative, scheming Svengali of a boyfriend, is a topic for another day). And puffery is fair game in the law as well. In general, courts define puffery as sales talk or harmless exaggeration and they’re reluctant to take on cases involving everyday sales talk. That may be why Steve Jobs was never acquitted of fraud despite the fact that much of his presentation of the first iphone in January of 2007 was a lot of smoke and mirrors. And it might be why no charges were filed against Donald Trump Jr and Ivanka Trump in 2017, when the Manhattan DA’s office investigated whether they mislead buyers of the Trump Soho. While it was clear they both lied to prospective buyers about the number of units sold, it was ultimately deemed “puffery”. Whether a fraud case gets to the courthouse steps may depend on whether the prosecutors or the judge deem the statements to be false claims or mere puffery. But once the case does reach those steps, everything changes. Then the jury decides.
For over 20 years, I stood before juries and advocated for my clients. More importantly, I taught my clients the tools to advocate for themselves. Faking it is not one of the tools of an advocate. Because after all those years with all those juries, one thing I know for sure is that “fake it til you make it” is never the best way to advocate. Especially not in the courtroom. It simply won’t work.
First of all, and most important, jurors are smarter than that. Jurors can smell fake in the courtroom, and once they smell it on you, you can’t escape the stench. One of the reasons they’re able to discern whether someone is a fake so quickly is because in the courtroom, you have to back “it” up with evidence and credibility . As I’ve often counseled my clients, “In the courtroom, you can’t fake it til you make it. You have to show it til you grow it.” You have to show the evidence that supports your claim. The data, the numbers, the testimony — the facts — have to be there. And the jurors are there to make sure it is. They’re measuring your evidence and credibility, and fake has no weight.
Second, your evidence and your story are subject to cross examination. I once heard someone compare being a trial attorney to being a surgeon, except that while you’re trying to save the patient’s life there’s another surgeon across the table trying to kill the patient. And that’s often how it feels. Cross examination is the other side’s attempt to kill you. They can’t kill you with puffery. Instead they use the tools of an advocate. They do it withevidence, questions, and words. Body language, tone of voice and facial expressions also help. Fake doesn’t hold up to cross examination.
Third, in the courtroom credibility is paramount. If the jury doesn’t believe you, you can’t win. And the jury’s focus is on whether you deserve their belief. I teach my clients that in order to establish credibility you must make the jury believe you, believe in you, and believe you could help them. A witness makes a jury believe IN them by sharing their experience, their training and their education. Holmes may be able to show, and grow, this part of credibility.
You make the jury believe you could help them by being likeable, approachable, overcoming the curse of knowledge to see things from the jury’s perspective and then speaking to that perspective. Anyone who doesn’t think Holmes may be successful in establishing this part of credibility underestimates her and her ability to put on a show. She may be able to speak to each juror’s experience, use words that resonate with them and help them believe that she could, and would, have changed the way we do blood tests forever given more time and resources.
But where Holmes will likely fall short is in making the jury believe her. I teach my clients to do this by making promises and keeping them, setting expectations and meeting them, and owning it when they can’t keep the promise or meet the expectation. Here, I think Holmes will fail. She made promises — and didn’t keep them. She set expectations, and didn’t meet them. And she never, ever owned it. Even now, her latest claim that her boyfriend and Theranos business partner Ramesh “Sunny” Balwani was the mastermind who manipulated her into the lies she told is the antithesis of owning it.
Perhaps she will take the stand and admit to all of the lies and all of the damage she caused. That’s owning it-but not if you blame someone else. If she blames Balwani, she’d better have the evidence to back it up. Because if you try to fake it til you make it in the courtroom and the jury knows it, you will lose.
In my work now, I teach people how to use the tools of a trial attorney to advocate for their ideas, their businesses, their team and their potential. One of the first things we do is to identify their jury — the people they have to persuade or convince in order to get what they want. Holmes already convinced her jury of investors to give her hundreds of millions of dollars. But now she’s fighting for her freedom. And her jury is going to be a whole lot more focused on the evidence, the cross examination, the holes in her story. They will be measuring her credibility In the courtroom, she can’t fake it til she makes it. She has to show it til she grows it. Let’s see if she has anything to show to back up her claims.
