More damaging, though, had been Richard Fuisz’s own courtroom
testimony two days earlier. Boies had caught him in a series of
pointless lies that, while they did nothing to prove Theranos’s theft
allegations, had undermined his credibility. One of them was Fuisz’s
contention that he still practiced medicine and treated patients—a
claim his own wife had refuted in her deposition. For no discernible
reason other than pride, Fuisz had refused to back away from it even
after Boies confronted him with her testimony. In his rambling
opening argument, Fuisz had also stated that his patent had nothing to
do with Theranos, which was absurd on its face given that his patent
application mentioned the company by name and quoted from its
website.
Joe had watched his father’s disastrous performance on the stand
with growing alarm. His dad had once been an amazing pitchman in
business settings because he was a terrific schmoozer and improviser,
but that off-the-cuff, loose-with-the-facts approach didn’t work when
you were being questioned under oath by a legal ace ready to pounce
on any inconsistency. It didn’t help that, at seventy-four years old,
Richard’s memory was beginning to slip.
Joe feared his brother John’s upcoming testimony might turn into
another liability. Boies knew John had a bad temper and would no
doubt find ways to press his buttons in front of the jury. He had
already brought up the fact that John had threatened Elizabeth during
his deposition.
When he added it all up in his mind, Joe knew they were in trouble.
And with a courtroom defeat looking like a very real possibility, he was
haunted by a terrifying thought: What if they not only lost, but the
judge made them cover Theranos’s legal expenses? He shivered to
think how much money their opponent was spending on the case. He
worried it might be enough to bankrupt him and his father both. They
had already spent more than $2 million on their defense.
Boies had come to their powwow with Mike Underhill, one of the
Boies Schiller attorneys running point on the litigation. Underhill, a
very tall and gangly man, broke the ice by asking Richard Fuisz if he
had really grown up on a farm (the answer was yes). That led to Fuisz