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Are “Conspiracy Theories” Viable in Civil Cases?

We’re all familiar with the phrase “conspiracy theory” from the movies and John Grisham novels. We also know that such theories are commonly used in federal and state criminal courts to allege a host of jointly committed crimes. But do conspiracy theories apply in civil cases?

Yes, in fact, a specific cause of action for civil conspiracy exists in Florida.

In order to prove a claim for civil conspiracy, a plaintiff must prove the following elements:

  1. An agreement between two or more parties;
  2. To do an unlawful act or do a lawful act by unlawful means;
  3. The performance an overt act in pursuance of the conspiracy; and
  4. The plaintiff suffers damage as a result of the acts performed through the conspiracy.

Notably, the unlawful act or lawful act by unlawful means referenced above – often referred to as the underlying tort – generally must constitute an independent cause of action.  For example, in a case where a plaintiff sues several defendants for conspiring to defame the plaintiff, the plaintiff must be able to establish an independent cause of action of defamation against at least one of the co-conspirators. If the cause of action for defamation against one of the co-conspirators can be established, the plaintiff then may sue the other co-conspirators for agreeing to take, and actually taking overt action, to help defame plaintiff.

Several benefits exist for bringing a claim for civil conspiracy against the co-conspirators, instead of suing only the defendant who performed the underlying tort. The benefits are as follows:

  • First, a plaintiff asserting a conspiracy claim against a defendant may not have a direct claim available for the underlying tort against that same defendant. Using the defamation example above, a party who assists an author in making defamatory statements against the plaintiff may still be liable to the plaintiff although the assisting party did not publish the defamatory statements himself or herself.
  • Second, when a party sues a co-conspirator for conspiracy, the co-conspirator may be held liable for the full amount of the damages caused, regardless of whether he committed the underlying tort or just conspired with another to commit the underlying tort. This is particularly significant where the co-conspirator is collectable if a judgment is issued, but the party who committed the underlying tort is not collectable.
  • Third, alleging a civil conspiracy triggers an important exception to the otherwise strict hearsay rule, which generally prevents the admission of out of court statements offered to prove the truth of a fact at issue. When a plaintiff alleges a conspiracy, however, any statement (including out of court statements) made by a co-conspirator in furtherance of the conspiracy is considered an exception to the hearsay rule and is admissible at trial. This hearsay exception often allows testimony or documents to be admitted at trial that otherwise would not be, sometimes making the conspiracy easier to prove than the underlying tort itself.

In sum, if a plaintiff can successfully allege the elements of a civil conspiracy in an action, the claim has benefits that often will make the plaintiff’s claim easier to prove at trial and easier to collect upon obtaining a judgment.

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