Virtual-Reality

This article first appeared in the print edition of Legaltech News, featured in the February's Corporate Counsel and The American Lawyer magazines, as “Virtual Reality in the Courtroom.”

Many describe trial lawyers as storytellers. That is not to imply we are inventing the narrative; rather, we focus jurors on right versus wrong as we construct a fact-based story easy to comprehend and support. Visual communication works. It grabs jurors' attention, helps them understand, and makes them remember.

For years, litigators have envisioned the advent of virtual reality for use throughout a case, especially at trial. Obviously, VR will enhance our ability to convince a jury what did—or did not—occur during an auto accident, medical procedure or product malfunction. Thanks to the gaming industry, whose customers demand increasingly realistic video games, technology can now place a VR viewer not only at the scene but in the driver's seat reliving a plaintiff's sensory experience.

So why aren't more lawyers incorporating VR in litigation as the successor to animation? Barriers still exist, but they are not insurmountable.

What VR Means to Lawyers

VR is a computer technology that generates realistic images, sounds and other sensations to simulate a user's physical presence in an imaginary environment. A person wearing VR gear can “look around,” move within and interact with the artificial world. Contrast that to animations, two-dimensional simulations that are displayed on a TV, computer, or movie screen, often externally controlled and shown to multiple people simultaneously. They are static: The viewer or presenter can't change the perspective or point of view.

The movie “Arrival,” the 2016 science fiction drama in which humans must learn extraterrestrials' “language” in record time, demonstrates the arrogance of humanity and limitations of language. Trial lawyers often deliver memorable and convincing cross-examinations and closing arguments that when transcribed display poor grammar and when read back make no sense. Why? Because effective communication involves more than words. Thus, we should embrace any technology that expands our “language” or ability to communicate to jurors. VR allows jurors to experience more than what they interpret from our words. VR increases the resolution or expands the data points.

VR brings animation to a different level, but requires donning a user-controlled headset. The wearer shifts the point of view up, down or sideways, activating motion sensors responding to head movements. VR can feel powerfully immersive and three-dimensional—so realistic that jurors unused to VR (which likely includes most of the jury pool) can get dizzy and motion sick. That can be a drawback since courts are reluctant to subject jurors to VR's side effects.

That also “violates a social contract” by isolating jurors from each other, the judge, the witness, and the lawyers, says Tomas Owens, forensic animator at Kineticorp, a Colorado accident reconstruction firm. The uniformity of jurors' experience remains a paramount value and is threatened by such isolation.

“The first 30 to 60 seconds you put a headset on someone, good luck getting them to do anything you want them to,” Owens says. “They're too wrapped up in the novelty of the technology.” But as VR becomes more commonplace, that novelty will diminish, he predicts. “Once people are comfortable with headsets, we'll start seeing full wireless haptic suits,” wearable devices that let users feel everything in the surrounding environment. Until then, the problem can be addressed by gradually and patiently acclimating jurors to the headsets.

Overcoming VR's Hurdles

Any new technology creates hurdles. The best approach is to anticipate and prepare to overcome such obstacles so that the benefits outweigh any risks or delays.

According to Owens, perhaps the greatest barrier to the admissibility of VR is the characteristic that makes it so advanced. “Because users control the experience, a jury can have 12 individual views about the same incident. Depending on head movement, one juror could 'see' what 11 others did not. Both the judge and the lawyers lose control of the evidence.”

That obstacle could be avoided by putting control in the hands of a testifying expert, perhaps instructing the jury in which direction to move their heads and by how much. A safe way to ease VR into the courtroom might be to create both a traditional animation and a VR version, so that even if the VR version is excluded, the animation may be admissible.

Many courts, such as in California, distinguish between computer animations and simulations. Animations illustrate expert or fact witness testimony and recreate a scene or process. Simulations contain scientific or physical principles requiring validation. Stated another way, an animation is treated as demonstrative evidence to help jurors understand substantive evidence. A simulation is by contrast substantive evidence. Admissibility of an animation is straightforward. Is it a fair and accurate representation of the evidence? It does not have to conform to the other side's version of the facts. VR will likely be treated the same way.

Whether to admit evidence requires weighing its probative value and its prejudicial effect. That presents another challenge. VR can be so realistic it overwhelms the senses. Animations and VR are only as accurate as the data underlying them. VR may look and feel like reality, but if the data does not originate from an impartial third party, it's only a rendition of reality, subject to distortion if based on questionable or biased data.

Using in-house engineers that perform inspections and run the numbers, Kineticorp creates VR with a two-step process. The first step inputs and analyzes the data; the second recreates the data into a 360-degree video realistic enough to convince a viewer he or she is the subject of the experience.

High Impact, another Colorado-based litigation support firm, works with accident reconstructionists and employs forensic engineering and science to use the most concrete data available when they create VR graphics. Animators do site inspections, taking high-quality photos of the scene and exhibits to ensure their VR is based on physics and real-world data. This type of attention to detail, however, can make VR unaffordable for most litigation.

Owens estimates lawyers can expect to pay from $60,000 to $200,000, but that price tag increases according to the complexity of the project. Andy Greenshaw, a High Impact digital animator, says the variables are so unique that it's impossible to predict costs without knowing the particulars and the concept the VR is designed to explain. He encourages lawyers to involve experts and lay the foundation for the creation of the exhibit early on to reduce production costs.

Most catastrophic injury or death cases could justify the expense, as VR can be used to establish both liability and damages. VR can also make economic sense in class actions, consolidated and multidistrict litigation cases, where costs can be spread over many matters.

On interim step along the way to adoption of trial VR may be augmented reality, which shows viewers a much narrower field than full-immersion VR. Headsets are not required. Jurors would all see from the same point of view something similar to watching a film on an IMAX screen. Owens envisions courtrooms already equipped with AR—a specialized screen and computers—to make viewings seamless transitions back and forth from physical evidence.

Both VR and AR will become part of the litigation process. The only question is when. Not only will some (and ultimately all) jurors soon expect information to be communicated through VR/AR, but it will most certainly help secure the outlier results we all should seek.

 

Arash Homampour, founder of the Homampour Law Firm in Los Angeles, exclusively litigates high-stakes, high-value trials and is an advocate for early adoption of technology that contributes to just resolutions.