Design With Purpose: Preparing for an ITC Hearing
Famous designer and architect Charles Eames once said, “Design is a plan for arranging elements in such a way as best to accomplish a particular purpose.” Knowing explicitly what your purpose is and making design decisions that support that purpose are the keys to successful design. That is true of the chairs and tables that Charles and Ray Eames designed and it is true for designing a winning visual presentation of your case at trial.
While much attention is paid to the design of trial presentations for juries, one growing venue of litigation that has not been given the same attention is the International Trade Commission. In this article we will identify the unique characteristics of Section 337 hearings before the ITC and the effect they have on design decisions in your trial presentation. By keeping these characteristics in mind during your preparation, you will be able to design a presentation that serves your ultimate purpose: having the administrative law judge understand your case and rule in your favor.
Unique challenges of presenting at the ITC
There are three key aspects to a Section 337 hearing before the ITC that make it a unique environment for your case.
The first is the audience: the administrative law judge and his or her staff. At a Section 337 hearing you know that your audience is intelligent, familiar with technology and IP cases, and interested in efficiently resolving your case. Your audience is less likely to be swayed by theatrics, and is more interested in understanding the factual and legal elements of your case and compiling the necessary evidentiary record needed to render a decision.
Second, your hearing will take place at an accelerated pace. Any tutorials and opening statements are generally shorter than typical IP cases, direct witness and expert testimony is often given via pretrial written statements, and there are no closing arguments. Your ALJ will have limited time to get familiar with the nuances of your case; so using graphics effectively and efficiently is crucial to providing a road map toward a favorable decision.
Finally, with such limited time at the podium, it is important to take advantage of all your opportunities to present visual information to the ALJ ahead of the hearing. This can include submitting graphics as part of witness statements or expert reports. Submitting graphics in written form without oral support can present unique design challenges that you must consider when designing your visual materials. However, having consistent design across your written statements and reports, at your tutorial presentation, and during your opening statement will increase comprehension through consistency and repetition.
This article will address these unique characteristics and some design choices for to consider.
Remember that judges are people too, and they are only slightly less susceptible to boredom and fatigue than your average juror. We once heard a retired judge lament during a panel discussion, “Why do juries get all the fun stuff?” Consider including some fun stuff in your presentation at trial so that can hold your judge’s interest as well as inform.
One way to avoid boredom is to vary your media. Project your trial graphics on screen but also consider printing your timeline as a large format board that you can interact with when telling your story. Have your expert diagram their explanation on a white board or demonstrate a chemical bond using a physical model of the molecule. By thoughtfully using graphics and other visual aids to augment your presentation you are much more likely to engage the ALJ on your case and improve his or her comprehension.
But you must be cognizant that trial graphics are not just pretty pictures, especially when used in a setting like the ITC. Successful graphics must do more than engage, they must provide clear information to help the court to rule in your favor.
The tone of your graphics should be objective—appropriate for the hearing environment with an emphasis on the efficient communication of information. Qualities of objectively styled design include: realistic artwork, legible typography, modest backgrounds, limited and directed color, ample contrast, and stylistic unity. Great inspiration for objective graphics can be found in the illustrations in the New York Times or the diagrams on a museum sign. Your audience will likely be familiar with that design vocabulary and subconsciously recognize it as instructional and credible.
Knowing you will be given a limited amount of time at the podium makes efficient visual communication a necessity. To ensure your hearing presentation is clearly understood in the limited time you have, consider the following design choices.
First, establish design conventions that will be consistent throughout your presentation. For instance, consider introducing simple icons for concepts you will discuss repeatedly. So, if you plan to have several comparisons of your product to the patent, develop a standard format that divides the graphic in half with your product always on the right and the relevant patent language always on the left. These simple design choices will serve as shorthand for your viewers that will increase comprehension.
Second, when teaching difficult concepts, you should consider using metaphors and analogies. While no analogy is perfect, a good analogy can serve as a toehold for your ALJ to grasp the nuances of your specific technology or product. Clients often express a reluctance to use analogies with judges because they think they might come off as “too cute.” However, rather than abandon analogies just because you think you have a sophisticated adjudicator, you should adjust the way you visually present your analogy to make it more refined.
For example, when trying to teach the concepts of pitch, roll, and yawl on a recent ITC case about motion sensors, we used a photo of a fighter jet and annotated it with each of the axes it could rotate around for each respective measurement (e.g., pitch is rotation around the lateral axis, in this case along the wings). By using a photorealistic example, we were able to teach the concept in a simple fashion that the ALJ could visualize without making it seem we over simplifying it in any way.
Finally, consider using animation during tutorials or openings to convey information quickly. With limits set on presentation time, animations can expedite teaching and reduce the need for lengthy exposition, while also offering a visually stimulating presentation.
Animation and motion graphics add unique advantages as they can illustrate things that still images and words cannot capture. Using movement over time, animations enable viewers to perceive different meanings and relationships between objects on the screen. While animations can be extremely polished (and expensive), they don't need to be in order to be effective. Moving a series of flat shapes from one place to another to show the interaction of chemical bonds can be an elegant solution.
We recently worked on a case dealing with microscopic details on integrated circuits. We were challenged to show the manufacturing process and details. In collaboration with the attorneys and a technology expert, we created a series of animations to illustrate the process. The expert used the animations in her tutorial and still frames from the animations were also used in opening statement. The other side tried to teach the same concept using a series of static line diagrams. It was hard to follow and put the burden on the viewer to visualize the subtleties of the narrative.
Designing for different media
For ITC hearings, it is to your advantage to build good graphics that can be used for multiple purposes. For example, an illustrated process diagram could be submitted as a stand-alone graphic in a pre-trial brief, be the first frame of an animation for a tutorial, be a slide in your opening presentation, and be printed on a large format board so that you can interact with it during cross-examination of a key witness. This kind of repeated use has numerous benefits: resonance by repetition, design consistency and cost savings.
In order to use a graphic concept in these different formats, it will need to read well both in print and on screen. It is best to balance the needs of both. First, avoid small type and visual details. These are hard to see from a distance on screen. Don't rely solely on color-coding for communication, as your graphic may be printed in grayscale or end up in front of a color blind ITC staff member. Instead use tonal contrast—black and white values—and use varying shapes and patterns for coding. Additionally, graphics we design for the ITC often have more text than we typically use for juries, as they need to be effective as stand-alone demonstratives in briefs and after the hearing without the benefit of oral explanation. In order to improve legibility of text, use simple, sans serif fonts at a size that is at least two points larger than you think you need and with plenty of spacing between bullets or blocks of text. Also, keep backgrounds free of any design to avoid visual noise and confusion, and to give maximum contrast to any text.
One final thing to consider when designing for different media is the importance of visual consistency. All of the graphics, whether they are for screen or for print, should share the same aesthetics, the same look and feel. Visual consistency is appealing to the eye. You only need to look as far as your smart phone— the similarity between all of the elements in its operating system and built-in apps—to see consistency at work.
Typography, color, layout, illustration style, and template design are important areas to unify. To be prepared and efficient, use the right template and establish visual styles early. Keep it simple. While options abound, try to make choices that best serve your content. For example, if you will have lots of colorful diagrams, pick a neutral or white background so that you have more colors available to you. If you plan on showing excerpts from a lot of documents, a darker background can help the white of your document scans pop. Also, remember to leave space in one of the corners of all of your graphics for exhibit numbers that will be placed on any graphic you show the ITC.
By now most attorneys will use some visual presentation in their ITC hearings. The challenge is to think about the specific needs of an ITC hearing—the unique audience, the accelerated pace and the variety of media—and to design graphics that highlight those factors and successfully engage and educate your ALJ.
Author's Note: This article was co-written by Aaron Stienstra.
Appeared in Focal Point Press
March 10, 2015