“CIVIL THEFT”

A Florida law called “civil theft” (also adopted in many other states) provides that if someone steals from you, you can recover in civil court for triple the value plus attorneys’ fees.  Because the law is so powerful, it is a favorite of plaintiffs’ attorneys.

And make no mistake, it is powerful indeed.  For example, a physical object needs not be involved.  If Mrs. X hires Mr. Y to perform a service without ever intending to pay him, she used his services with the intent to steal their value.  The civil theft law’s wide reach makes it applicable in such an example. By the same token, its reach is not universal. If Mrs. X intended to pay but later did not for whatever reason, she may have breached a contract, but there is no theft involved.

There are two hurdles in particular that too many people ignore in a grab for a bigger payday.  First, a plaintiff will have to prove “felonious intent” – the intent to steal, using the same standard as would be used to support a felony conviction in criminal court.  Second, the plaintiff will have to prove this (and every other element of the claim) by clear and convincing evidence, which is a higher standard than usually required in civil court.

Those hurdles matter, if for no other reason than an unsuccessful plaintiff would have to pay the prevailing defendant his attorneys’ fees.  Yet, there is still a place for a civil theft count under the right circumstances, even in commercial litigation where felonious intent is not a frequent issue.  But there is also a place for reason in devising legal arguments.