What Can Litigators Expect From the Metaverse?

No doubt you’ve heard about the metaverse. To many people, the metaverse is an online destination that the world’s largest technology companies are spending billions of dollars to colonize. It’s reportedly the “next big thing,” a constellation of virtual reality technologies that promise to revolutionize digital marketing, business collaboration, and higher education. Perhaps the law as well.

The metaverse has avatars. And stunningly realistic digital landscapes that can be explored merely by turning your head or waving your arms in the air for no immediately apparent reason. This much we know. What else?

The term “metaverse” shares the paradoxical attributes of a Zen koan in that it both exists and does not exist — at least, not yet. Think of the metaverse as a plot of land. Today, that land could be a farm. Tomorrow, it could be an office building or an amusement park. Or a landfill. Or all of these things. One never knows.

Another important aspect of the metaverse — for legal applications, at least — is that it is inherently deceptive. Consider the Rene Magritte painting “The Treachery of Images.” The painting depicts a pipe with the words “Ceci n’est pas une pipe” written beneath. The phrase translates from French to English as “This is not a pipe.” The viewer naturally believes that he or she is looking at a pipe but, as Magritte reminds us, the viewer is in fact looking at canvas and paint skillfully arranged to mimic the outward appearance of a pipe.

Virtual reality is likely not real enough for use in court.

So … what can lawyers do with, or within, the metaverse?

Potentially, quite a bit. Although the future direction of metaverse-related technologies is unknowable, it is worthwhile for everyone in the legal community to consider how the metaverse — as we understand it today — might be applied to the practice of law.

The Metaverse Defined

Generally speaking, the metaverse is a three-dimensional virtual space populated with digital avatars. The term “metaverse” was coined 30 years ago by science fiction author Neal Stephenson. In his 1992 novel Snow Crash, Stephenson describes an online world populated by user-controlled digital avatars, a place where the novel’s characters take refuge from a dystopian real world. The world depicted in Snow Crash also has a cryptocurrency, another parallel with contemporary technology. 

Interactions with people and objects in the metaverse are accomplished with virtual reality goggles and other devices that capture motion, body language, facial expressions, and tone of voice. Interactions within the metaverse can be a highly immersive experience that closely approximates — and, in the case of augmented reality technologies, improves upon — our experiences with the mundane physical spaces and imperfect life forms that populate contemporary reality. 

The Metaverse in Law Practice

To better understand how the metaverse and virtual reality technologies might be applied to the practice of law, it’s helpful to categorize possible use cases and consider each one separately. Broadly speaking, virtual reality technologies will likely have application to the following law-related activities:

 

  • Marketing
  • Meetings and collaboration
  • Education and training
  • Litigation

Marketing

Just as the marketing brochure yielded to the law firm website, and website text yielded to website video, the law firm website seems likely to undergo yet another evolution as a virtual reality environment. In fact, legal marketers are already using virtual reality technologies to offer prospective clients a highly immersive, interactive “tour” of the firm’s offices and service capabilities. Making connections through virtual reality can also position the firm as technology-savvy — an important attribute among client’s of the world’s largest law firms.

Meetings and Collaboration

Many lawyers will have their first exposure to the metaverse in 2022, when Microsoft rolls out Mesh for Microsoft Teams, an enhancement that adds virtual reality features to Microsoft’s Teams videoconferencing product. Microsoft says that the combination of Teams videoconferencing and virtual reality technologies will produce better collaboration, more participant engagement, and an improved three-dimensional interface. Instead of the familiar two-dimensional “Hollywood Squares” grid of web-cammed faces, Teams users can interact via avatars in a three-dimensional virtual environment. Mesh-enhanced Teams users will also be able to manipulate virtual objects during conference sessions if they have VR headsets and motion capture devices.

Microsoft has been working with Accenture to develop business applications for its virtual reality technologies. Accenture’s virtual office and virtual holiday party offer a whimsical glimpse of what can be done in the metaverse today.

Facebook, as most people know by now, is reportedly so enamored of the metaverse that it changed its name to Meta. Facebook is offering virtual reality meeting spaces, along with VR-inspired entertainment, travel, and e-commerce opportunities. (Imagine purchasing a virtual shirt that your avatar can wear to online meetings.)

Education and Training

Advocacy skills development is one of the most compelling uses of the metaverse for legal professionals. With virtual technologies, it will be possible to provide lawyers and law students with a virtual appellate courtroom in which to rehearse oral arguments. And it’s not too far-fetched to imagine the day when virtual justices — with the benefit of artificial intelligence and document analysis tools — pose tough and relevant questions to the lawyers practicing in their courtrooms.

Similarly, deposition training in the metaverse might closely simulate the environment in which the deponent will be testifying. Virtual reality technologies might, in theory, pose questions to the deponent and measure the effectiveness of the answers given to each question.

Jury selection is yet another area where an immersive courtroom simulation, combined with relevant data on likely jurors, could yield significant advantages for litigators.

Negotiating against an adversary is also professional skill that could benefit from virtual reality technologies. A clearly defined set of rules and desired outcomes, coupled with an immersive “virtual negotiation room,” promises to provide a compelling training ground for lawyers and law students. 

Litigation

The last frontier for virtual reality will likely be the courtroom itself.

Avatars won’t soon be allowed to give testimony in a legal proceeding. However, courts and lawyers are already creating the foundation for admission of virtual reality experiences into evidence in a legal proceeding.

Today, federal and state courts have all considered the admissibility of two distinct types of computer-generated evidence: animations and simulations.

Animations are considered to be demonstrative aids. They often recreate a scene or a process; they are not sub

stantive evidence. Typically animations illustrate an expert witness’s testimony and are offered for the purpose of making the expert’s testimony more understandable to the court or jurors. 

Simulations, on the other hand, are created by entering data into a computer model that analyzes the data and reaches a conclusion. A simulation is not admissible into evidence unless all of the data and methods used by the expert to create the simulation can themselves be lawfully admitted into evidence.

The standard for admitting an animation is more lenient. If the animation fairly illustrates the expert’s opinion and is helpful to the jury, it is often admitted.

In all cases and in every jurisdiction, the court will also ask whether the computer-generated evidence is more probative than prejudicial.

Litigation in the metaverse is very unlikely to meet the evidentiary standards on the books today.

With the benefit of many months of remote lawyering during the COVID-19 pandemic, it is not difficult for lawyers to imagine a virtual reality courtroom with a judge avatar, six avatars in the jury box, with attorneys virtually advocating their clients’ positions in a three-dimensional virtual environment. That scenario is likely a long way away.

We’re more likely to see actual jurors in a physical courtroom listening to virtual reality “evidence” or visiting a virtual accident scene or watching a virtual surgical process through VR headsets. But even that scenario faces what appear today to be nearly insurmountable evidentiary hurdles. Not only must these new types of evidence meet demanding foundational tests, but virtual reality is so also immersive it will be difficult for jurors to assign it the weight it deserves to bear on the issues in the case.

And when it comes to the topic of depositions, are there any lawyers today who would be satisfied to cross-examine an avatar in lieu of a live witness? That scenario also seems far-fetched. For now.