Criminal restitution is an underused but effective remedy expanded by recent case law. Crime victims are entitled to recover restitution. Unlike civil cases which allow victims to recover both general and special damages, crime victims are limited to recovery of Restitution or economic loss, also known as special damages. While this recovery is more narrow, the impact on a civil case cannot be understated.
When a criminal defendant is convicted by either Trial or guilty plea, the court must impose a sentence. Where the victim suffers economic loss, the Court must also impose Restitution. In a civil case, the conviction conclusively establishes the defendant’s responsibility for the criminal act. Likewise, the Restitution conclusively establishes the defendant’s responsibility for the victim’s economic loss. This is a tremendous benefit to a crime victim that also seeks civil remedy. Civil defendants, funded by insurance companies, have access to experts of easy virtue that will routinely testify victims could not have been injured in such incident, were not injured and/or they are all better or exaggerating their symptoms. Such testimony drives up the cost of civil litigation reducing a civil litigant’s ultimate recovery.
In a recent case, the right to compensation by a restitution order was expanded to include infractions of the law. In the case of People v. Smalling, a shop owner was convicted of an infraction, allowing dogs on his premises to kill a guide dog. The victim sought restitution in the trial court but was denied. On appeal, the Los Angeles Superior Court Appellate Division directed the Trial Court to hold a hearing on the value of the service dog and impose those costs as restitution upon the defendant.
Civil attorneys miss out on a golden opportunity when they fail to pursue full Restitution for their clients in the criminal courts. The law authorizes the civil attorney to appear and put on evidence of their clients’ economic loss in the criminal courts. In addition, they are entitled to recovery of attorney’s fees for such efforts.