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February 2011 Archives

Restitution Hearings May be Informal but Treat Them as Mini-Trials

thumb_bill.jpgIn restitution hearings, widowed spouses can recover the lost economic support provided by the deceased spouse. The victim can recover attorneys' fees incurred in protecting or establishing his or her right to restitution, and investigative and storage expenses incurred related to the criminal case. These damages accrue 10% interest per year from either the date of sentencing or loss, as the Court determines. There is no statutory limit on the amount of restitution that may be paid. The judge has discretion to use any rational method that is reasonably calculated to make the victim whole. It is an abuse of discretion not to award the entire amount required to make the victim whole, unless the court can find and state compelling and extraordinary reasons on the record. Restitution hearings also have procedural advantages. The trial court must order a criminal defendant to pay restitution for a victim's economic loss. However, a criminal defendant has the right to a hearing before the trial court to dispute the amount of restitution. Normally, a Deputy District Attorney would be assigned to represent the victim's interest at the restitution hearing. But in Mary's case, you are more familiar with the facts and have a distinct advantage over the D.A., who may have at least a handful of other restitution matters to deal with at the same time, and who may not be as equipped with the volume and detail of economic records as you. Although the nature of a restitution hearing is more informal than that of a trial, you should know they are mini-trials and be prepared present your evidence accordingly. Testamentary evidence, documentary evidence, and even expert testimony may be needed. At the mini-trial, you will present your evidence first. You must make a showing of loss. The standard of proof at a restitution hearing is by a preponderance of evidence. Once you have made your initial showing, the defendant has the burden of demonstrating inaccuracies in your proof. William L. Veen founded The Veen Firm, P.C. as a sole practitioner in 1975, gradually developing it into a firm of talented attorneys and staff who represent severely injured workers and consumers. He is a member of the American Board of Trial Advocates and was honored as the Trial Lawyer of the Year by the San Francisco Trial Lawyers Association in 2003. The US News & World Report has named him the Lawyer of the Year in Personal Injury, Litigation in San Francisco for 2014.

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