By Leslie King O’Neal
What is “Virtual Reality?”
Some readers may be familiar with “virtual reality” (“VR”) from gaming, where the VR headset creates immersive, three-dimensional environments that users can interact with. VR uses computer modeling and simulation enabling interaction with an artificial three-dimensional (3-D) visual or other sensory environment.[i] However, VR is not just for gamers. It’s used in healthcare, business, education, design and construction. And, VR recently made its courtroom debut when a judge donned Oculus goggles to watch a VR simulation in a criminal proceeding. Construction lawyers and arbitrators will want to become familiar with this powerful tool.
Virtual Reality Use in Design & Construction
VR is already a reality in design and construction projects,[ii] but it’s only one of the immersive technologies under the “extended reality” umbrella. [iii] Microsoft Hololens[iv] goggles allow construction professionals to use VR to experience immersive walkthroughs of project designs, explore different material options, and simulate construction processes
With VR, safety managers can review potentially dangerous site conditions in advance. Inspectors can conduct 360⁰ inspections from anywhere. VR enables off-site safety training for workers and allows clients to “walk” through construction work in progress.[v]
VR in Dispute Resolution
Since VR is already used in designing and constructing projects, this technology will soon be used as evidence (or to create evidence) in construction disputes. It’s particularly suited to illustrating building failures and collapses, accidents on construction sites, and construction progress or delays.
Florida Judge Uses VR Simulation in Court
In fact, VR is already being used in court proceedings. VR made its courtroom debut recently, when a Florida judge used a virtual reality simulation in a criminal court proceeding.[vi] Defense attorney Kenneth Padowitz [vii] used the VR simulation to present his client’s perspective of the incident to support the “stand your ground” defense to aggravated assault charges. The judge, the prosecutor and the expert witness wore Oculus Quest 2 headsets to experience a VR simulation during the defense expert’s testimony.
What’s the Difference Between Computer Generated Animations and Simulations?
Computer-generated animations and simulations have been widely used in court proceedings for many years.[viii] However, it’s important to distinguish between animations (used as demonstrative exhibits) and simulations (used as substantive evidence).[ix]
Animations Are Demonstrative Exhibits
In general, computer animations presented to enhance oral testimony are demonstrative evidence with the foundation requirement that they are a fair and accurate representation of what they purport to depict and they are not confusing.[x] When used to illustrate expert opinion, the exhibit must be helpful, applied to evidence offered at trial and its probative value must outweigh any unfair prejudice.[xi]
Simulations May Be Substantive Evidence
Computer simulations, on the other hand, may be used as substantive evidence to support expert testimony, providing scientific analysis of how events likely occurred.[xii] Simulations don’t just illustrate events, they analyze them and predict outcomes. They’re grounded in scientific principles and require rigorous validation to ensure accuracy and reliability. Experts use simulations to substantiate their opinions with scientific data.[xiii]
Getting Simulations Into Evidence—in Court or in Arbitration
To be used in court VR simulations must meet higher evidentiary standards than animations require. Simulations require validation under Daubert or Frye, whichever applies in the jurisdiction. Although strict evidentiary rules don’t usually apply in arbitration, arbitrators want to ensure the evidence presented is accurate and isn’t faulty or fraudulent. Arbitrators don’t want to rely on evidence that is not authentic or trustworthy. Federal and state evidentiary rules are persuasive authority on standards for admitting VR simulations in arbitration hearings.[xiv]
Best Practice—File a Motion to Allow Animation/Simulation
As with all demonstrative exhibits, filing a motion with the judge or arbitrator asking permission to use a VR animation or simulation before introducing it is the best practice. The motion should state the purpose of the animation, set forth the foundation requirements and explain how the animation will fulfill them. The expert whose opinion is being aided and any witnesses who created the animation should be available to testify at trial (or hearing) and be subject to cross-examination. This includes the “forensic animator” who designs the animation or simulation in conformity with the expert’s opinion and the available evidence.
Advocates must take care when using VR either as a demonstrative exhibit or as evidence. It’s extremely important that anything portrayed in the animation(s) be based on actual available evidence to avoid an objection and possible exclusion from evidence as “unreliable” or “unfairly prejudicial.”
With VR Experiences–You Are There
VR is a powerful tool. Because of its immersive quality, users are not merely spectators, but feel they are personally involved in the event. This raises concerns about whether experiencing an incident virtually could make it difficult for judges, arbitrators or juries to remain impartial. As one scholar noted, “ . . .VR . . .enables users to acquire embodied, first-person point-of-view memories of events that they did not live through personally . . . . VR experiences are remembered as something that personally happened to me-the user . . . rather than as a video they watched on a screen.”[xv]
What’s Next?
Use of VR in court or arbitration raises issues such as technical standards for VR, privacy protections and equal access to this technology. Courts and arbitrators must balance these innovations with fundamental fairness, so technological advances serve justice rather than compromising it.
Takeaways
- Designers and constructors are using VR (and other extended reality tools) on construction projects now.
- VR animations and simulations can be used as exhibits or as evidence in construction disputes, both in court and in arbitration proceedings.
- Using VR animations and simulations requires advance preparation; best practice is to file a motion with the judge or arbitrator seeking permission to use the animation or simulation.
- There are different foundation requirements for animations than for simulations. Counsel should be aware of these.
- Both the expert who will be using the VR animation or simulation and those who helped create the VR should be available to testify and be subject to cross examination.
- VR is a powerful tool. Its use in court proceedings creates challenges for lawyers, judges and arbitrators. These include: cost, fairness, cybersecurity, privacy, authentication and reliability.
[i] Encylopedia Brittanica https://www.britannica.com/technology/virtual-reality
[ii] Autodesk Construction Cloud Digital Builder Newsletter https://www.autodesk.com/blogs/construction/extended-reality-construction-ar-vr-mr/#defining
[iii] The term “extended reality” is an umbrella term that encompasses all immersive technologies, including AR, VR, and MR. XR represents the entire spectrum of immersive experiences, from fully virtual environments (VR) to augmented versions of the real world (AR) and everything in between (MR). Grace Ellis, Extended Reality in Construction: A Guide to AR, VR, & MR, Autodesk Construction Cloud Digital Builder Newsletter (March 12, 2024) Extended Reality in Construction: A Guide to AR, VR, & MR
[iv] Microsoft HoloLens is the first fully self-contained holographic computer to run Windows 10. https://learn.microsoft.com/en-us/hololens/
[v] See, The Connected Job Site e-book (Drone Deploy 2025) https://www.dronedeploy.com/resources/ebooks/connected-job-site-construction-technology
[vi] State of Florida v. Albisu, (Case No: 23002405CF10A, Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida)
[vii] https://www.lauderdalecriminaldefense.com/ Mr. Padowitz, a former prosecutor, used introduced the first computer animation into evidence in Florida in 1992. Pierce v. State, 718 So.2d 806 (Fla. 4th DCA 1997).
[viii] The first forensic animation was used in court in 1988 to illustrate the tragic Delta 191 plane crash in Dallas. Jason Fries and Sean Daly, The History of Forensic Animation in the Courtroom, Forensic Magazine (November 16, 2022) The History of Forensic Animation in the Courtroom
[ix] Kenneth Padowitz, Forensic Computer ‘Animations’ vs. ‘Simulations’: Why Attorneys Need to Know Difference Forensic Computer ‘Animations’ vs. ‘Simulations’: Why Attorneys Need to Know Difference – Fort Lauderdale Criminal Defense Attorney
[x] Technology in Construction Law (Leslie K. O’Neal, Ed.) (ABA Press 2023), Ch. 7, p. 194, citing People v. McHugh, 476 N.Y.S.2d 721, 722-23 (Sup. Ct. 1984). People v. McHugh, 124 Misc. 2d 559 | Casetext Search + Citator See Recommendation and Resources for more information about this book. https://theconstructionadrtoolbox.com/recommendations/
[xi] Pierce v. State, 671 So.2d 186 (Fla. 4th DCA 1996).
[xii] Kenneth Padowski, Forensic Computer ‘Animations’ vs. ‘Simulations’: Why Attorneys Need to Know Difference Forensic Computer ‘Animations’ vs. ‘Simulations’: Why Attorneys Need to Know Difference – Fort Lauderdale Criminal Defense Attorney
[xiii] Id.
[xiv] See Ralph Artigliere, Admissibility and Use of Electronic Information in Construction Cases, 17 J. Am. Coll. Const. Law. 2 (2023-24) at pp. 63-64. http://Legalsolutions.thomsonreuters.com
[xv] Ruta Kazklauskaite, Virtual reality as a technology of memory: Immersive presence in Polish politics of memory, Memory, Mind & Media, Vol. 2 (Cambridge University Press 2023).
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