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On Feb. 13, 2002, U.S. Army Staff Sergeant Terrence Dillon underwent a surgical procedure and received a new cholesterol treatment device known as the “New Life Stent.” Not only was the stent designed to cleanse blood of cholesterol, its specialized chemical compound would actually dissolve cholesterol plaque blocking the arteries. Unfortunately for Dillon, the stent worked far too well. On March 2, Dillon died after suffering a stroke. An autopsy revealed that the stent was more powerful than its designers had thought — it loosened immense amounts of plaque, clogging Dillon’s circulatory system. The tragedy resulted in a criminal indictment against the stent’s manufacturer, NewLife MedTech. Actually, nothing in the first two paragraphs ever happened. However, it was the fact pattern for the April 6 moot trial by the Courtroom 21 Project, a joint legal technology program of the College of William & Mary School of Law and the National Center for State Courts, in Williamsburg, Va. A DUAL MISSION The Courtroom 21 Project has the dual mission of training law students in trial advocacy and litigation technology, as well as serving as a technological resource for courts and legal practitioners around the world. Under the direction of William & Mary law professor Frederic Lederer (a member of the Law Technology News Editorial Advisory Board), Courtroom 21 is a component of William & Mary’s “Legal Skills Program,” a mandatory two-year, nine-credit course. Students are assigned to legal skills “firms,” which consist of 1L students as first-year associates on up to 3Ls as managing partners. Students conduct client interviews and settlement negotiations, and experience motion practice and, eventually, a trial in the Courtroom 21 Project’s McGlothlin Courtroom, which includes state-of-the-art technology. The Courtroom 21 Project’s second mission involves current, rather than future, legal practitioners. Through its Courtroom Affiliates Program, the school offers trial technology research assistance to courts, serving as a legal technology information exchange. Affiliated courts span the globe, including courts from Florida to California, and from Canada to Northern Ireland. VIRTUAL TRIAL A real-life judge — U.S. District Judge Nancy Gertner of the District of Massachusetts — presided over the trial. A proponent of trial technology and a fan of things futuristic, Gertner keeps a statuette of “Star Trek”‘s Captain Kathryn Janeway in her Boston courthouse. The captain would have felt at home at this Courtroom 21 trial. In the mock trial, the criminal indictment was brought by the United States government, charging NewLife MedTech with manslaughter. It was set in federal court because the event happened at a military base (and because the school draws participants from all over the country, they don’t want to get bogged down with the nuances of state law, organizers explain). Student defense counsel Iria Giuffrida and Elizabeth Kinland argued that NewLife MedTech was not reckless in the marketing of the stent. Instead, they placed blame on the surgeon — alleging that he implanted the stent in the wrong place. To prove their case, they called a nurse who testified that he saw the doctor place the stent in the wrong part of the artery. To refute this testimony, student prosecutor Ashley Moore and her co-counsel argued that the nurse’s view of the stent implantation was obstructed. But instead of relying on a “he said-she said” dispute of what happened in the operating room, the prosecution used technology known as immersive virtual reality. FUTURE WORLD If you saw the film “Disclosure,” based on the book by Michael Crichton, you may remember Michael Douglas’ character donning goggles and entering a futuristic world where he was able to interact with things that were not really there. While Douglas entered a world of corporate espionage, the NewLife MedTech witnesses entered the operating room where Dillon’s operation took place. Donning special goggles with sensors communicating to a virtual reality computer system, the witnesses saw the operating room in 3-D, giving them the perspective of actually being in the room. Those in the courtroom saw the presentation in a standard two-dimensional view on Courtroom 21′s video displays. The virtual reality system was designed by the University of California at Santa Barbara’s Center for Virtual Environments and Behavior, which received a grant from the Federal Judicial Center. The UCSB virtual reality team includes Andrew Beall, Jeremy Bailenson, and founders Jack Loomis and Jim Blascovich. Recent technological advances, driven by the computer gaming industry, have made virtual reality systems much more affordable, says Beall. “A virtual reality system that would have cost over half a million dollars a few years ago, can now be built for about $20,000,” he said. Until recently, an immersive VR system required a UNIX-based workstation, Beall explained. Now, it can be done on off-the-shelf PCs with a clock speed of 500 MHz or faster. The UCSB team built its own CPU with a clock speed of 1.4 GHz for Courtroom 21. The complete system included the CPU, two displays, the goggles and the sensors. Models, wearing operating room scrubs, were photographed, and the images were scanned into the system to create the “virtual humans” in the operating room. During the trial, the sensors on the Virtual Research V8 goggles communicated with the CPU, allowing the computer to know which way a witness’ head was moving, explains Beall. “It simulates the real world,” Beall said. “The computer keeps up with wherever your head moves. It changes your view to match what you would actually see if you were there,” he added. SKEPTICISM Although admitting some initial skepticism, Judge Gertner became a fan of the technology. While impressed with the system, one of her first decisions during trial was whether to allow the system at all. Citing Fed. R. Evid. 403, Giuffrida and Kinland argued that the virtual reality theater was too realistic, making its prejudicial impact on the jury greater than its probative value in determining what happened in the operating room. They argued that the virtual reality presentation should be held to a higher standard, and thus excluded, because, under Fed. R. Evid. 701, the lifelike presentation went beyond the scope of the witnesses’ own perceptions. Although Gertner denied their motion, she did not discount their points. “It’s a case where, if the technology were too advanced, it might be inadmissible,” Gertner noted. In the case of virtual reality, “the more cartoonish, the better.” Gertner observed that, in the NewLife VR program, the virtual faces were very similar to the real-life faces of the participants. But because they were indeed cartoonish, the VR overcame any undue prejudice issues, she said. But if technology creates a problem, it can also solve the problem. Through a process known as “non-photorealistic rendering,” engineers can create virtual realities that are more cartoonish and not as lifelike, perhaps solving the admissibility problem, explained Beall. CHOOSE CAREFULLY Gertner cautions that the Rule 403 balancing test is not the only test litigators must consider when using technology in the courtroom. Lawyers should choose carefully, she advises. When using trial technology, “the narrative should drive the technology, not vice versa,” Gertner advises. “I’ve seen lawyers use PowerPoint presentations, and never look at the jury,” Gertner said. “These are wonderful devices, but the lawyer who uses them to take the place of telling the story and connecting with the jury runs the risk of becoming antiseptic and ineffective,” she added. “If lawyers use high-tech when low-tech would be just as effective, jurors may find their cases contrived or too glitzy.” THE VERDICT The NewLife mock trial jury included friends and family members of the student litigators, as well as members of the Christopher Wren society, a local Williamsburg community group. After about an hour of deliberations, the jury ruled in favor of defendants. Courtoom 21 associate director Dawn Hardy listened to the jury discuss its reactions to the VR program and other technology used in the litigation. While generally enthusiastic, at least one juror found the VR to be confusing and distracting. Another juror, who liked it, offered the caveat that “it didn’t really aid in making a case for the prosecution,” reported Hardy. Jurors also commented about other high-tech tools used in the trial, including heart diagrams presented as holograms and animation, she said. They were especially enthusiastic about a 3000i SMARTboard, from Smart Technologies Inc., used to display and highlight evidence. The trial drew legal professionals from Canada and the United Kingdom. One observer told Beall that the virtual reality at trial was “exciting and foreseeable.” “That they think it’s foreseeable is what’s exciting to us,” Beall beamed. David Horrigan is assistant editor of The National Law Journal and contributing editor of Law Technology News.

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