July 8, 2015
What the internet is today to lawyers is an established disruption of prior ways of practice. The internet has now been around long enough to where services and products have matured to make lawyers’ lives more efficient and productive. There are now two up and coming technologies that have a potential to similarly disrupt the way lawyers and, in particular litigators, practice law: virtual reality and augmented reality. Today we are on the cusp of virtual reality and augmented reality devices that work as advertised becoming readily available to consumers. In the virtual reality space, there is Facebook’s Oculus, Valve’s SteamVR, Sony’s Project Morpheus, and others. A number of these products will be available to consumers in the first quarter of 2016. In the augmented reality space, despite the recent hiccup of Google’s Glass project, Microsoft has announced and demonstrated its HoloLens. These devices are all being developed and marketed primarily for use in video games, at least initially. However, to view their utility as limited to entertainment is to hold too narrow a view of their potential. This position is supported by the fact that Facebook – not an established video game publisher - purchased Oculus for $2 billion dollars and that Microsoft’s HoloLens reveal and demonstrations have thus far included a number of applications unrelated to entertainment or video games. These devices and this technology are likely to disrupt not only video games and entertainment but also provide new efficiencies to a number of other fields, including the practice of law.
For those unfamiliar with the terms, “virtual reality” is a technology by which the user is fully immersed, typically both visually and audibly, in an artificially created space. The current headsets are just that – headsets that enclose the user’s eyes and pipe in audio by headphones. “Augmented reality” is a technology where the user still sees the real world around herself, but that vision of the real world is altered or augmented by the headset’s lens or other peripheral. If either of these concepts is confusing or unconvincing to you, you are not alone – for many, the only way to appreciate these technologies is to try them.
In considering the use of virtual reality or augmented reality technology for litigators, there are a number of potential uses. This article seeks to describe some of these potential use cases and also provide an initial examination as to how the rules of evidence and other applicable rules may address the use of these technologies.
One of the most obvious uses of virtual reality and augmented reality for litigators would be to use the technology to provide a demonstrative exhibit to juries at trial. Imagine each juror placing a virtual reality headset on their head in order to “walk through” a reconstruction of an accident scene. Or imagine jurors wearing augmented reality headsets to allow them to view a life-like diagram of a human body and its relevant portions in a medical malpractice trial. These applications would be much more impactful than a PowerPoint slide, a white board, a printout, or a transparency slide. Instead, the jurors would get as close as they could to the subject of the demonstrative exhibit without actually seeing the real thing.
Another possible use for virtual reality or augmented reality at trial would be the playing back of recorded deposition testimony. Ask any trial lawyer: the playing back, or, worse, the reading of, deposition testimony in lieu of live testimony is a pale substitute for the real thing. One way to transform this deposition testimony into something closer to live testimony would be to have the jurors view the deposition testimony while they are in virtual reality or via augmented reality such that it appears that the deponent is in front of them giving live testimony.
A similar use of this technology would be the remote testimony of a witness who appears via virtual or augmented reality. Rather than a talking face on a television monitor or a voice coming through a speaker phone – the witness would appear to be live, or at least as close to live as he could through virtual or augmented reality.
At even a more base level, the presentation of documents and other evidence would be more forceful through augmented reality where the evidence appears in front of a juror as if it were in front of her face, and where she may manipulate it, rather than flatly displayed on a monitor or on a screen some distance away.
Jury views could be conducted virtually, rather than incurring the expense and lost trial time that it takes to bus a jury out to a remote location, and jurors could explore that same location recreated in virtual space. Such virtual exploration would also come without some of the same limits that are often imposed on jury views - jurors could go past boundaries that may otherwise be present in real life for reasons such as safety or security.
Last, but not least, suppose that for whatever reason, the trial of a matter is to take place in a different location than where the jury is located. Perhaps because the Court holds that finding a non-biased jury in the location of the trial would be impossible. The jurors at an off-site location could attend the trial entirely through virtual reality. Furthermore, if some jurors are not physically present with other jurors, the jury could confer in virtual reality as if they were in the same room.
OUTSIDE OF THE COURTROOM
Beyond use at trial, virtual and augmented reality technologies hold the potential for many transformative applications for lawyers.
Rather than providing an expert witness with a written narrative of the subject of her testimony, a virtual re-creation of the subject of her testimony could be created in a virtual space and provided to the expert for her review and preparation. The expert could then explore that virtual space and have a better understanding of the underlying facts of forming her opinion (combined of course with any primary source relevant evidence). Imagine an expert being able to view and explore in a virtual space the accident that is the subject of her opinion, or being able to review in detail and at multiple layers in augmented reality the medical procedure at issue in a case as it is alleged to have happened.
Teleconferencing into a deposition is never as ideal as being in the same room with the witness. It would be far preferable to hold the deposition in a virtual space where the deponent and the attorneys all appear to be in the same room and can observe each other’s body language as if they were in the same room.
In many lawsuits, litigators learn about the subject matter of the lawsuit through education by their experts. Imagine being able to explore and observe, for example, a beating heart appearing on top of your desk through augmented reality and being able to physically see the relevant portion of a medical procedure occur in front of your eyes instead of reading about it or hearing about it from an expert. Imagine being able to walk a witness through his testimony in a virtual space that is a re-creation of the location that is the subject of his testimony - for example, an accident scene or a crime scene. Imagine being able to refresh the recollection of a witness not through a document, but through the virtual or augmented reality of reliving the event of his testimony through virtual or augmented reality.
These are just some possible legal applications of virtual and augmented reality. In the next 10 to 15 years, these and other applications will arise and astound even those observers of the greatest foresight. Many legal questions will need to be resolved as this technology outpaces our current understanding of how to try cases – decisions about admissibility, discoverability, cost, and other issues all remain open and unexplored questions at this early date.
WHAT SHOULD LAWYERS DO TO PREPARE?
Lawyers of every stripe, of every age, and of every practice area, should make an effort to educate themselves about existing and future technologies, even if those technologies do not appear to have legal application at first blush. In order to most zealously and effectively represent our clients, we will be called on in the coming years to enlist new technologies that were but a spark of imagination in recent days. For lawyers, this is an opportunity to distinguish themselves from their peers as well as being a more effective advocate for their clients.
This is also a business opportunity. There will be a demand for businesses that can consult with lawyers to execute the applications described in this article and those applications unimagined by its author. Many, if not most law firms, will not be in a position to be able to execute these applications in-house without significant help from the outside. We may come to a point where there will be off-the-shelf software enabling lawyers to create virtual spaces or convert evidence into augmented reality, but that day is not today. In the meantime, outside consultants will need to help lawyers put this work into action.
The future is exciting, as it always is, even for lawyers.