Technology can solve many practical problems we face as lawyers if we only will think about the problem and apply technology in innovative ways. This was recently brought home to me in a serendipitous conversation with a lawyer and an expert.
For many years, I was a mass tort lawyer, often defending cases involving a single incident with multiple injuries, property damage and fatalities. A catastrophic fire. A deadly building collapse. A massive explosion.
In most cases, the entities who end up being defendants in the resulting litigation rarely know of their involvement or potential involvement until months or even years after the event occurs. The practical result: those entities do not have the opportunity to have their experts inspect the scene and do a critical scene evaluation while the evidence is fresh and the least disturbed.
I was often faced with trying to convince potential clients and/or insurance carriers to fund or participate in an investigation without knowing whether they would be involved in the resulting litigation. These entities would be forced to gamble on either being a defendant later or selling their investigation to others who were. Moreover, by participating in an investigation and identifying themselves, these entities would focus the plaintiffs’ attention on them. As a result, we would often seek access to do an investigation for “unnamed parties” without identifying the interests we represented.
Convincing plaintiffs and/or a court to allow an entity’s expert to investigate without knowing for sure that entity would be involved or without identifying it sometimes worked, sometimes didn’t. But without an early investigation, these entities would be way behind if they later became defendants. They would be forced to rely on the findings and observations of other experts, who would often be adverse. It was a dilemma.
But today’s technology offers a solution. I recently discussed a case with Dr. Chuck Fox, senior managing consultant and director of ESi’s visualization practice group and a plaintiff’s lawyer named Andy Cash. Cash is a partner at Cash, Krugler & Fredericks in Atlanta and a bona fide plaintiffs’ trial lawyer. ESi is an expert consulting and forensic firm.
Fox and Cash told me about a case in which they were involved where ESi developed a virtual reality (VR) application to investigate the death of a young boy who accidentally became trapped inside a family’s home elevator system. Because there were no witnesses, the geometry of the elevator system in relation to the child’s size, among other crucial forensic investigation data points had to be otherwise developed and determined.
Laser scanning is an objective exercise that is party neutral and is considered by many as the “photography” of the 21st century.
ESi did this by first taking a laser scan of the site right after the accident occurred. Laser scanning is an objective exercise that is party neutral and is considered by many to be the “photography” of the 21st century. The FBI, NTSB, state and local police forces, and engineering firms routinely now document scenes, structures (e.g., buildings and bridges), vehicles and mechanical components with 3D laser scanning technology. The scanners capture a 3D collection of points called a “point cloud” that accurately shows the surfaces of a scanned object or environment, down to three-hundredths of a millimeter (0.03mm, 0.001in), depending on the scanner, settings, and application. The scanned objects are permanently preserved digitally to permit later measurement, analysis, modeling, simulation, visualization, and virtual re-inspection at any time in the future.
This not only allows experts to validly and virtually inspect the scene at any point just as if they were present at the actual scene, but it also allows experts to do their work in a comfortable and safe environment without distraction.
From the scans, virtual scenes can be created for experts to analyze and even walk through without having to be at the physical scene. Static imagery, hybrid imagery, basic fly-throughs, and virtual reality simulations can all be accurately re-created. This not only allows experts to validly and virtually inspect the scene at any point just as if they were present at the actual scene, but it also allows experts to do their work in a comfortable and safe environment without distraction. (I remember being with my expert at a fire scene one time in the dead of winter. With icicles hanging from his nostrils, my expert glared at me as I was sitting in a warm car and said, “Embry, you owe me one’). As Cash pointed out, using the scanning process also eliminates the sometimes impractical and disruptive visits by a pack of experts stumbling over themselves at a physical scene.
Fox told me, “VR is taking fact-based visuals to another level by sharing perspectives of those involved in an event, and offering viewers the ability to move around in an immersive virtual environment at a real-world 1:1 scale,…VR can play an important role in forensic investigations…In cases where viewpoints are important.” , VR allows experts and, for that matter, clients and juries to experience witness views, enter confined spaces—perhaps spaces that could not safely be entered physically—and develop powerful insights.
According to Fox, “These unique points of view can be generated quickly and efficiently using VR.” Cash also told me having this objective evidence and the virtual tools developed from it enabled him to deal with unforeseen and unexpected twists, turns and theories developed by the other side. (Incidentally, Cash told me the other side resorted to documenting the scene through still pictures and measuring sticks. It goes without saying that Cash had a significant advantage). This ability starts with the relatively straight forward task of laser scanning the scene right after an incident.
You can get an idea of the possibilities from the three images below which Fox sent me. These images are screenshots not of the actual, physical scene but were created from a laser scan of the physical scenes. The data behind these still images are 3D, so you can also move through them on a computer screen, or even enter the scene immersively using VR.
The Mass Tort Dilemma and Laser Scanning
So, getting back to my mass tort problem. Because laser scanning is an objective exercise, it can be done by any competent expert like ESi and would create a pool of data that any party could later use. The person doing the scan could be appointed by the court or even be a reliable plaintiff or defense expert. And because its relatively inexpensive, potential defendants would have less reluctance expending the funds necessary to undertake the exercise. It a much more robust way to document a scene than mere photography and would enable an expert analysis that is just as good as being there.
Once again, technology is providing useful tools for those lawyers willing and able to use it.