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Assume that I have lost $1,000 due to embezzlement.

What are the pros and cons and practicalities of trying to press charges of embezzlement vs going to small claims court to get the money back?

For example: 1. With which approach am I more likely to get my money back? 2. Would an Attorney General or District Attorney have to file for embezzlement, which may and may not happen, whereas I can file in small claims court myself. 3. Will an AG or DA make a better legal case than I could, and so be more likely to win?

I am in Atlanta, Georgia, USA.

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  • Great question! The broader form would be, "If I have suffered torts due to a crime, what efforts can I make to try to get the crime prosecuted, and if it is prosecuted does that help my attempts to recover damages in civil court?" E.g., if the criminal case is pursued should I wait for it to be completed before pursuing civil action? Is there a means to recover my damages as part of some "victim compensation" or "restitution" if the criminal prosecution is successful, or do I always have to file my own legal action?
    – feetwet ♦
    Nov 1, 2015 at 17:12

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Generally (at least in the US), you cannot file criminal charges unless you are a prosecutor. Criminal charges are brought by the state on behalf of society as a whole; the goal of criminal charges is not to help or compensate the victim, it's to punish the offender and benefit society. The victim will often obtain restitution payments, but they are pretty much bolted on to a procedure not focused on compensating the victim. For instance, if the AG decides to drop charges (which they can do at any point), the charges are dropped.

Instead of picking one or the other, you can do both. After the criminal case, if you want, you can file in small claims. You can't collect double, but since they have totally different purposes you don't have to do one or the other.

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You might consider approaching the prosecutor first with your evidence. Then agree to be a witness for the prosecution if they decide to prosecute. Wait for the criminal procedure to resolve itself. If they get a guilty conviction or a plea with an order of restitution, you win without having to file a suit.

On the other hand, if the defendant wins an acquittal, you can still proceed with your civil suit in small claims court. You have to be careful because the $1,000 is a small enough amount that it could quickly be overtaken by legal fees if you have to hire an attorney.

The advantage of this approach is it minimizes your cost and time investment by letting the criminal justice system do much of the work for you vis-a-vis establishing civil liability for the crime/tort.

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    "you can still proceed with your civil suit" - It's probably worth pointing out that this works because the standard for criminal conviction is "beyond reasonable doubt", but the standard for civil liability is only "on the balance of probabilities" (Those terms are from England and Wales, but pretty much all jurisdictions will have the same sort of ideas.)
    – Martin Bonner supports Monica
    Jun 4, 2019 at 16:03

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