Sui Generis--a New York law blog

Will the Apple Watch be a game-changer?

This week's Daily Record column is entitled "Will the Apple Watch be a game-changer?"  My past Daily Record articles can be accessed here.

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 Will the Apple Watch be a game-changer?

As the Apple Watch is about to hits stores, the question remains: will lawyers use the Apple Watch? Or are we already too overloaded with devices, gadgets and distractions? My prediction is that the legal profession will take to the Apple Watch like a fish takes to water.

The reason is simple. The Apple Watch won’t clutter our digital lives; it will streamline them. This wearable technology will serve as an unobtrusive, immediate link to the truly important information that we need to know while filtering out the digital noise for later when we have time to sift through it.

Here’s the killer feature that will sell lawyers on the Apple Watch: the subtle notifications. Because of the unobtrusive notifications, many lawyers will quickly begin to use Apple Watches as part of their day-to-day routine. The watch will serve as a digital filter, allowing through only the most important notifications from their iPhones. Lawyers will be able to program their watches to permit notifications about phone calls or messages from only the most important people in their lives: their assistants, their work colleagues, their spouses, or a time sensitive call from a specific person.
Currently, with iPhones, it’s pretty much all or nothing. You either receive notifications or you don’t. So if you’re in court or in a meeting and are expecting a phone call, you’re forced to leave your phone on the table lest you miss the call. When you do this, you send the message that you’re not paying attention. Every buzz causes you to look toward your phone, creating a distraction and breaking the flow of conversation.

With the Apple Watch, you’ll be able to set notifications to vibrate and only allow specific calls through from your phone. That way, the watch will only vibrate when you get that call and you’ll be able to sense the vibration without even having to glance at your watch. And then, when there’s a break in the proceedings or the meeting, you can step out of the room and return the call.
Women attorneys will appreciate this feature even more than their male counterparts. Unlike most men, professional women don’t carry their iPhones in their pant pockets or in the inside pocket of their suit jackets. The pockets are simply too small. Instead, we place our phones in our purses or in our briefcases. This means we don’t feel the phones when they vibrate and oftentimes can’t even hear them when they ring. So in order to avoid the appearance of being rude, we tend to miss important calls altogether.

The Apple Watch offers the perfect solution to this dilemma. It will provide women lawyers with the ability to receive important notifications right on their wrist, even if their iPhone is tucked away and out of sight. So while it seems like such a simple fix, it’s an important one and one that will truly make a difference in the lives of women lawyers.

Of course, there will be many other uses for the Apple Watch, both for lawyers and the public as a whole. Importantly, the Apple Watch is in its infancy and its features will evolve over time, defined in part by the ways that we choose to use it. But I predict that it’s the filtered, silent notifications that will be the killer feature that makes it so appealing right out of the starting block. From there, who knows where it will take us? I, for one, am looking forward to finding out.

 

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

NY Court of Appeals Strictly Interprets Court of Claims Act Requirements

Last Thursday, in Kolnacki v State of New York, 2007 NY Slip Op 02436, the New York Court of Appeals considered the issue of whether the failure of a Court of Claim's claimant to include the "total sum" of her monetary damages in her claim was a fatal jurisdictional defect.   

In this case, the claim at issue stated, in relation to the damages suffered, only that "[t]he full extent of claimant's injuries are not yet known," and that she had "incurred injuries, damages, medical and hospital expenses which are to date undetermined and will incur loss of earnings and impairment of health."

The Court reviewed the applicable provision and the purpose behind the Court of Claims Act and concluded that the failure to include the amount of damages claimed is a fatal deficiency:

Under section 8 of the Court of Claims Act, the State has waived its sovereign immunity from liability "provided the claimant complies with the limitations of this article [§§ 8-12]." The Act contains several conditions that must be met in order to assert a claim against the State. Specifically, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed" (Court of Claims Act § 11 [b] [emphasis supplied]).

"'[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed'" (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999] quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Section 11 plainly requires that the claim state the total sum claimant is seeking. Notwithstanding Kolnacki's argument that "the total sum claimed" does not necessarily have to be a dollar figure, it is clear that her claim — entirely lacking any amount of monetary damages — failed to satisfy the requirements of the statute.

This decision isn't particularly surprising to me and serves to further highlight how important it is to err on the side of caution when filing claims against the State of New York.  The failure to include the required information in the Claim can result in the dismissal of an otherwise strong claim, so make sure to carefully review the relevant statutory provisions prior to commencing an action against the State.  Better safe than sorry.

Ouch!--NY Court of Appeals Dismisses Unjust Conviction Claim Against State

In Long v. State of New York, 2006 NY Slip Op 05231, Mr. Long was convicted of Rape, Robbery, and Sexual Abuse in 1995 and sentenced to prison for 8-24 years.  In 2000 he was released and his conviction was vacated pursuant to CPL s. 440.10 as a result of an investigation by the DA's Office which determined that he was the "wrong man."  In 2002 he failed a claim against the State of New York in the Court of Claims alleging unjust conviction and imprisonment. 

The Court first clarified that "the Court of Claims Act requires a claimant to establish only that the vacatur of the judgment was predicated upon one of the statutory grounds" rather than requiring a claimant to establish that the vacatur of the judgment and dismissal of the indictment were based on one of the grounds specified in Court of Claims Act § 8-b (3) (b) (ii) and CPL 440.10 (1).

However, unfortunately for Mr. Long, the next issue considered by the Court was not decided in his favor, and is yet another example of a failure to err on the side of caution when it comes to procedural matters--especially when filing a claim in the Court of Claims.

In this case, the claim was not verified by Mr. Long, but rather was verified by his attorney on his behalf, pursuant to pursuant to CPLR 3020 (d) (3), which permits an attorney to verify a claim if the client "is not in the county where the attorney has his office."  The Court concluded that, unlike other types of claims against the State, the Court of Claims Act specifically required a Claim verified only by the claimant in cases alleging unjust conviction and imprisonment:

Claimant's reliance on Lepkowski is misplaced. That case involved section 11 (b) of the Court of Claims Act, the general verification requirement that specifically incorporates CPLR procedures by providing that a claim "be verified in the same manner as a complaint in an action in the supreme court." We concluded that a defectively verified claim under section 11 (b) should be treated no differently than a defective verification in supreme court, and that CPLR 3022's remedy for an invalid verification is available (see Lepkowski, 1 NY3d at 210). In contrast, the verification requirement in Court of Claims Act § 8-b (4) is specific to claims for unjust conviction and imprisonment and makes no reference to the rules governing supreme court practice. Hence, CPLR 3020 (d) (3) and 3022 have no application to this case.

Wow.  That's gotta hurt.  Talk about unjust results.  Poor Mr. Long.  At least he only served 5 years in prison prior to the vacatur of his sentence, as opposed to the unlucky people who aren't released for 15-20 years.  But, I suppose that's not much consolation, now, is it?

Kleptomaniac or Overzealous Court Officers? You Decide.

Wyllie v. State of New York is an interesting case that was recently decided by the Court of Claims. The legal issues aren't all that unusual, but the fact pattern is, as is the Court's conclusion.

In Wyllie, a former King's County Assistant District Attorney brought a claim against the State for wrongful arrest stemming from her arrest by Office of Court Administration court officers in open court while she was performing her duties as an ADA in Brooklyn.  Ms. Wyllie was arrested, transported to the 84th precinct, and charged with petit larceny, criminal possession of stolen property, and grand larceny.  The charges were later presented to a grand jury, which did not indict.

What did Ms. Wyllie do that lead to this unfortunate series of events, you wonder?  She was alleged to have attempted to steal a wallet from a paralegal, Desiree Martinez, during a busy criminal arraignment part in plain view of the entire courtroom.  The wallet was located in a purse on top of a filing cabinet and the owner of the wallet, a co-worker with whom Ms. Wyllie had a good relationship, was sitting just a few feet away when the alleged larceny occurred. 

Ms. Wyllie claimed that Ms. Martinez handed her a file which was missing paperwork, so she approached Ms. Martinez at her desk, which was located in open court, but she was otherwise occupied, so Ms. Wyllie decided to obtain the forms herself.  She then set her own files on top of the filing cabinet next to a purse owned by Ms. Martinez.  Ms. Wyllie then bent down and opened the top drawer, at which point the filing cabinet tipped over toward her.  As she tried to right the cabinet, she was arrested by one of the court officers.

One of the arresting officers testified that he saw her unzip the pocketbook that was on top of the filing cabinet, take out the wallet, squat down in front of the filing cabinet, and rifle through the wallet while holding it in the bottom drawer of the filing cabinet--in open court while Ms. Martinez sat a few feet away.  He then approached her and apparently startled her, at which point the filing cabinet began to tip over, and she threw the wallet away from her, towards the pocketbook.  She was then taken into custody.

The Court summarized the situation as follows:

On one hand, defendant proffers an account in which an Assistant District Attorney chose to enter a courtroom crowded with a judge, several court officers, police officers, lawyers, defendants and spectators and attempt to steal money from a co-worker with whom she had a friendly personal relationship. On the other hand, claimant seeks to convince the Court that two experienced court officers with whom she had a cordial professional relationship arrested her without cause and fabricated a series of lies to cover their tracks.

The Court held that the claim should be dismissed and concluded that:

Claimant's theory flows from two explanations: either the officers were acting in concert with one another to frame claimant or they mistakenly believed they were witnessing a crime and that belief was not objectively reasonable. The former seems unlikely in that it would have required the court officers to predict that claimant would enter the District Attorney's well of AR-1 and act in a way that dovetailed with their story...(T)he Court is simply not persuaded that the innocuous acts described by claimant could be subject to such gross misinterpretation. Consequently, the Court resolves the factual dispute in favor of the defendant and concludes that the claim must be dismissed.

This case struck me as strange on so many levels.  From a factual standpoint, one wonders: 1) why the court officer handled the situation in such a confrontational manner, rather than perhaps making a phone call to a superior who could then call her superiors, 2) why she was charged with a felony for what could easily have been charged as a simple petit larceny, 3) why she was charged at all given that it was probably bad press from the get go and could have presumably been treated as a misunderstanding and not prosecuted, 4) if she was in fact trying to steal the wallet, why she did it in open court--seems like something that only a kleptomaniac would do, and 5) why the grand jury didn't indict her.

Additionally, the Court's decision struck me as odd.  The Court conceivably could have held that the officers' belief that she was committing a crime was objectively reasonable and was the result of some sort of strange misunderstanding and left it at that.  In other words, the Court could have concluded that it was entirely possible that she hadn't attempted to steal the wallet, but that the officers' conclusions based upon what they could see from their vantage point were objectively reasonable nonetheless. But it seems to me that Court went a step further and inferred that Ms. Wyllie was untruthful. 

All in all, it's a strange case.  The only possible explanation that I can come up with that might explain the sequence of events that lead up to the filing of the civil claim is that Ms. Wyllie must have been on someone's bad side.  So, the moral of the story is:  be nice to your colleagues, especially court officers, and, if you happen to be an ADA, be extra-special-nice to your boss.