pursuing independent civil claim

the backstory to this is convoluted, but the short version is that my car was totaled by a drunk driver back in October 2016. Fast forward now to April after all kinds of complicated back and forths with insurance, and everything is finally being settled. Because of a limits issue, I am only being compensated for a sliver of my total damages through insurance. The next step would be to pursue a civil case against the driver to recoup my remaining damages. I have 2 questions:

a) there is a criminal proceeding against the driver, and I have the opportunity to have my total damages considered in a restitution hearing as a part of that case. Other than the ease of the process as opposed to pursuing my own civil claim, is there any advantage or disadvantage to winning a judgement in one forum as opposed to another? I can't double dip and pursue both. I know for example in a civil judgement, it can still be near impossible to actually collect the money. Is there any difference in that regard in a criminal judgement? Does one carry more "weight" than the other in terms of the party actually paying up?

b) In either case, is there a straightforward way to reflect the burden of having my car totaled (some type of "pain and suffering") beyond the actual factuals of out of pocket expenses like car rental, towing fees, etc?

The bummer of this whole thing, is that it's *just* enough money for me not to want to let it go, but not quite enough for me to turn this into a much larger project than it's already been. Also, the incident happened in LA, whereas I live in Oakland, meaning that if I pursue a civil case, I'll either have to appear in LA, or hire an attorney to appear on my behalf, and the total settlement (if I even ever actually saw it) doesn't really justify that cost. Supposedly I can have the damages heard as part of the restitution hearing without appearing personally, but I don't entirely trust it. Seems a little flimsy.

Thoughts? Tips? Insight?

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fairweather

not giving you legal advice.

in fact, i typically represent defendants in criminal matters including DUIs that sometimes involve restitution hearings. i do what i can to limit the amount of restitution being ordered. in part b/c i think it's abhorrent for the state to seek restitution in those matters. i think restitution should be a civil issue. here in my jurisdiction double dipping IS allowed, btw.

so i'm not giving you advice. go speak to a California attorney. or ask the prosecutor - who is NOT your attorney but at least as far as restitution they can tell you what's to be expected.

but none of them want to touch it, either because it doesn't involve injury, or they rightly recognize that the total $ is just too small potatoes.

I've talked with the prosecutor in LA, but I don't trust that she has anything close to my best interest in mind - it's barely a blip on her radar. Her bandwidth to consider my detailed thoughts and concerns is understandably almost none.

I would of course appreciate any insight you're willing to offer, but I understand it's likely limited to what you already mentioned.

I'm hoping to identify if trusting the idea of not personally appearing at the restitution hearing (if I choose that route) is stupid. There may be an attorney like you on the other side, and if I'm not there to speak on my own behalf, I can't help but assume the outcome may worsen in my disfavor, despite what the prosecutor has assured me.

Also the question about how to outline the softer burdens of having my car totaled, but I know that's not necessarily your thing.

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fairweather

the issue is - what proof does the state have of the damage to your car? also - the amount of restitution may be limited by statute. i'm not sure. or it may be limited by prior agreement w/the defense.

most important - that the state has RECEIPTS showing money you spent due to the DUI case. i dunno if the court will accept repair estimates - the court may want the state to show actual money spent. it may be that you can only be compensated for money spent and not compensated for estimated damages. i don't know. the prosecutor knows - ask them.

i don't know if it's better for you to appear - ask the prosecutor. here where i practice it doesn't matter if the complainant appears. we almost never run an actual hearing - usually there's an agreement between the defense and prosecution based on receipts the prosecution can produce minus any insurance or other payments made by the defendant. sometimes there's a cap either by agreement or statute.

talk to the prosecutor.
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