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Virtual Reality Faces Daunting Courtroom Realities

Nov. 21, 2017, 5:01 PM

Virtual reality could be the next evolution in courtroom presentations, but proponents must resolve uncertainties if it’s to gain a beachhead in the button-downed legal profession.

Leading practitioners and experts interviewed by Bloomberg Law largely embrace the immersive technology and its potential legal applications. But they also acknowledge lingering concerns about logistics, cost, and economic inequities.

Topping the list, three-dimensional graphical presentations with interactivity seem so real to jurors that they may prove unduly persuasive in a legal process built around discerning truth. And people can react very differently to the technology.

Some jurors may lose attention while others may even get motion sick.

Those obstacles may be surmounted by excluding jurors prone to illness and physical stress; and experts can serve as courtroom “tour guides” to keep jurors from losing focus.

How all the moving parts of this new and complex technology come together for it to gain wider acceptance in the courtroom remains an open question, however.

“Its going to take the right case, with the right lawyers, in the right jurisdiction, with the right judge,” said Brice Karsh, who heads High Impact of Centennial, Colo., a firm specializing in custom illustrations, animations, and 3D interactive presentations.

Juror Confusion

Concerns that jurors would be unduly persuaded by highly realistic virtual reality evidence has long slowed its use.

Virtual reality evidence is “absolutely” more likely to raise concerns about juror confusion, misleading proof, or prejudicial impact than other forms of evidence, Karsh said.

The goal, he said, needs to be that the experience must be founded in science and engineering in a way in which VR adds to the substantive aspect of the case more so than traditional animation. If deemed more prejudicial than traditional visuals, it will be that much harder to get it in, Karsh said.

But Noel Edlin, a defense attorney, and Mitch Jackson, a plaintiffs’ attorney, disagreed.

“Actually, VR evidence is more likely to minimize confusion and misleading proof as the exhibits are developed using empirical data,” Edlin, managing partner at Bassi Edlin Huie & Blum in San Francisco, told Bloomberg Law.

“Properly created and presented VR consumed by jurors with wearable headsets will avoid confusion and improve the quality of our verdicts,” Jackson, a senior partner at Jackson & Wilson in Laguna Hills, Calif., told Bloomberg Law.

“When it comes to evidence, facts matter and recreating a scene or situation can help bring old facts back to life in a modern courtroom,” he said.

Plaintiffs’ attorneys Marc Lamber and James Goodnow, both with Lamber Goodnow in Phoenix, said lawyers opposing the use of the technology may be concerned a jury won’t keep an open mind after a virtual reality experience. The fear is that jurors will simply adopt the arguments of the party using the VR technology because it seems so real.

But, “ultimately, if properly used, we’d argue that VR technology is getting jurors closer to the truth—which is exactly what our legal system should encourage,” they said in a joint statement.

“Keep in mind that our legal system is an adversarial one, and it’s premised on one party presenting its case and the other side coming in and attacking it.” the attorneys said.

Keeping Jurors Focused

Other issues also vex attorneys. Should all jurors experience the effects of virtual reality simultaneously and in a uniform manner, or can individuals be allowed to immerse themselves in their own way?

And how can distinctions presented by individual jurors, including tolerances and aversion to visual stimuli and risk perception, be accommodated?

Uncertainty over whether jurors experience and observe the same information the same way already is an issue with jury views, Frederic I. Lederer, a law professor and director of the Center for Legal and Court Technology at William & Mary Law School in Williamsburg, Va., told Bloomberg Law.

“If VR is used to illustrate likely sensations, such as showing fear for damages, individual reactions would be highly problematic,” he said.

There will have to be a few cases setting early precedent, Karsh said. However, the best use would not be one of an independent experience as you still want everyone focused on the same reference area.

To illustrate his point, Karsh said to imagine 12 jurors with headsets on all looking up, down and all around. “A few, if not all, might not even be looking at what needs to be seen at a given moment,” he said.

“Thus, its likely most effective if an expert witness acts a VR tour guide so the jurors get the immersive experience of VR but the experience is controlled so they are looking in the direction they need to be,” he said.

Michael Talve, CEO of The Expert Institute in New York, a leading provider of expert witnesses, told Bloomberg Law the “potential for jurors to become distracted, overwhelmed, or focused on the wrong aspect of the presentation would be high without this guidance.”

Edlin said courts need to step in and require attorneys to present the jurors with a uniform virtual environment.

“Once inside of it, however, jurors will observe and absorb different information,” he said. Like any evidence, however, there is always a risk of differing perspectives arising from identical content, Edlin said.

Jackson, who like Edlin has practiced for 30 years, said courts and trial counsel don’t want jurors independently investigating facts of a case online or offline. “I think the same standard will apply using VR,” he said.

Motion Sickness

And what about with the idiosyncrasies presented by jurors, each with different tolerances, temperaments, and degrees of aversion to visual stimuli and risks? The immersive nature of virtual reality is both an asset and a concern, experts say.

VR works in part because it tricks your subconscious into believing that what you see is real even when your conscious mind knows full well it’s an illusion, Lederer said.

This is why you feel your stomach drop when you stand on the edge of a virtual rooftop, even if you’re standing in the middle of your living room, he said.

“Thus, people who have certain phobias or other issues can have similar reactions to virtual representations that they would have to real situations,” he said.

“There is no real way to compensate for these issues other than not using the technology,” Lederer said. Physical distinctions among jurors are one of the biggest obstacles to VR in the courtroom, Edlin said.

Jackson knows firsthand about motion sickness.

“I have a hard time not getting nauseous when using VR,” he said. “Especially when I’m in a virtual environment that involves high speed and substantial motion.”

In addition to motion sickness, there is also a concern users may experience sensory overstimulation when exposed to virtual reality, a situation potentially problematic for some people who have anxieties, are on the autistic spectrum, or those with other neurological conditions, Edlin said.

Lederer said VR requires working depth perception, good eyesight, and the capability to properly perceive three-dimensional imagery, as in a 3D movie. People with certain eye conditions can also have adverse reactions to VR that persist even after taking off the headset, he said.

“These issues would need to be addressed during jury selection and are the subject of software development. For instance, designers are building Rift headsets with much more realistic body motion that significantly reduces” concerns about motion sickness, Edlin said.

Other Logistical Issues

For virtual reality to work in courtrooms, each user needs a separate headset to interface with the VR environment independently, Lederer said.

Additionally, there are competing VR technologies and hardware, with no single standard or front runner.

If a court were to adopt virtual reality as part of installed courtroom technology, its installation might not be compatible with presentations using differing standards or applications, Lederer said.

Initially, this is unlikely to be of concern as the parties would propose use of VR and supply it. However, doing so likely would be a standalone use with one-time courtroom installations, he said.

Because VR is dependent upon the movements of the user, and the technology must track those movements, both physical space and tracking device location and installation are also likely to be problematic, he said.

Costs Coming Down

Lederer said that early uses of VR in courtrooms are likely to be very expensive, as were the first high quality computer animations.

Court-installed technology has become more commonplace because it compensates for litigants who can’t afford the technology. VR, holographic, or 3D evidence requires appreciable financial resources, potentially biasing the case in favor the wealthy, he said.

Right now, the cost for virtual reality is “easily entering the six-figure range,” Lamber and Goodnow said. Although the equipment costs a few thousand dollars, the real money is spent in creating the 3D world with experts and graphic designers in a way that it could potentially be admissible at trial, they said.

Karsh, whose company provides attorneys with presentation formats, including virtual reality, says that as a general rule VR currently costs about 30 percent to 50 percent more than standard 3D animation. Edlin noted that Oculus Rift VR headsets, though cheaper than they once were, still cost about $400 a set. Add in one-time hardware and software costs of about $3,000, and $2,000 to $50,000 for animation and the numbers start to rise.

But these costs are “trivial when compared to the power differential achieved by the party deploying this technology against one who presents his/her case using two-dimensional interfaces,” Edlin said.

Maybe Fewer Experts

The cost for virtual reality wouldn’t seem as high if the new technology allowed attorneys to reduce spending on expert witnesses. Edlin said that with VR, fewer experts will potentially be needed in the courtroom.

“An expert’s time can be used more efficiently in setting up virtual exhibits that immerse jurors in the information. Instead of having an expert witness testifying on the stand, they can narrate what the juror is experiencing virtually,” he said.

But Talve and Karsh said virtual reality will likely be used to complement rather than replace testifying experts.

“A compelling VR presentation guided by an extremely qualified expert would be a highly persuasive combination at trial,” Talve said.

It’s a “mistake” to assume the jurors would be able to easily understand complex medicine, science, or IP issues without these visual aids being accompanied by expert testimony, Karsh added.

And without expert testimony, there is no way to properly lay a foundation for the judge to allow the jury to even see it.

“VR like all other media, will be just another tool in the expert’s/attorney’s tool box,” he said.

Winning Over Judges Key

For virtual reality to succeed, a big hurdle will be getting buy-in from judges.

Ultimately, the judge is the final gatekeeper for what is admissible and how it is used, Lamber and Goodnow said. Karsh agreed. “Whether courtroom use of VR `should be or shouldn’t be’ left up to judges doesn’t matter, because it will be left up to individual judges,” he said.

And it could be a tough sell to get hidebound judges to embrace new approaches.

“Even today some judges will not allow standard 3D animation. Some judges will be for VR and others not so much,” Karsh said.

An earlier article focused on the potential uses of virtual reality in courtrooms.