Schmidt, Sethi & Akmajian Blog

Restitution: Economic Losses Directly Caused by Criminal Conduct

Posted by Ted A. Schmidt | Feb 02, 2022 | 0 Comments

State v. Reed, No CR-20-0385-PR (February 1, 2022) (J. Timmer)

Attorneys fees incurred by victim to exercise, enforce, and defend rights in criminal proceeding may be recovered in restitution award if directly caused by criminal conduct.


Defendant was convicted of felony voyeurism.  Trial court awarded restitution including attorneys' fees charged by attorney she hired to represent her during criminal proceedings. The Arizona Court of Appeals affirmed the restitution award and the Arizona Supreme Court vacated that opinion and reversed in part and and remanded the trial court ruling.


In sum, the trial court must order restitution for economic losses

directly caused by the criminal conduct but cannot order restitution

for consequential damages. Victims' economic losses incurred because

they exercised, enforced, or defended their rights in a criminal case are

allowed as restitution. But when those losses are private attorney fees,

they are allowable as restitution only when an attorney is reasonably

necessary to assist victims in enforcing those rights. Such fees directly

flow from the criminal conduct. If that showing is lacking, the fees are

the consequence of something other than the criminal conduct—for

example, the victim's discomfort with the criminal process, mistrust of

the prosecutor, or a strategy that the attorney monitor the criminal

proceedings to assist efforts in a related civil case. Such fees are consequential

damages, which are not allowable as restitution.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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