Lawsuits for Malicious Prosecution or Abuse of Process
If someone has wrongfully sued you or prosecuted you for a crime, you may be able to bring a claim of malicious prosecution or abuse of
Malicious prosecution and abuse of process are related types of lawsuits where one person (the plaintiff) sues another person (the
defendant) for -- in a previous case -- trying to use the legal system against the plaintiff in a manner for which the system was not
intended (the basis can be either a prior criminal or civil case). This article discusses in detail the elements of a malicious prosecution or
abuse of process claim.
Difference between Malicious Prosecution and Abuse of Process
While the two claims are similar, malicious prosecution and abuse of process claims have some essential differences.
A plaintiff can sue for abuse of process when a defendant starts a legal process with the intention to obtain results for which the process
was not designed. A plaintiff can sue for malicious prosecution when a defendant “maliciously” prosecutes a criminal case or uses a civil
proceeding against the plaintiff when the defendant knows he or she doesn’t have a case. In addition, the plaintiff must have already
obtained a “favorable termination” of the defendant’s malicious case before he or she can sue for malicious prosecution.
Essential Elements of Abuse of Process
As already mentioned, a plaintiff can sue for abuse of process when a defendant starts a legal process with the intention to obtain results
for which the process was not designed.
A “legal process” can be any part of a lawsuit, not simply the entire lawsuit. For example, a defendant’s original lawsuit might have been
legitimate, but the use of a particulardepositionor other smaller, discrete aspect of the lawsuit may not have been. Even though the
defendant’s lawsuit was legitimate, the plaintiff can still sue for abuse of process because of the illegitimate deposition.
The best way to think of the “improper purpose” requirement in an abuse of process claim is that, although the defendant had a technical
right to use the legal process, he or she did so to extort something else from the plaintiff. For example, trying to tie up property in a
divorce proceeding in order to get the other spouse to agree to different child visitation rights. It is worth noting that abuse of process
claims are diﬃcult to prove and are typically unsuccessful.
Essential Elements of Malicious Prosecution
A successful malicious prosecution claim requires all of the following:
beginning or continuing a criminal or civil legal proceeding
without reasonable grounds to believe the allegations of the proceeding
with a purpose other than simply getting a judgment in the proceeding, and that
the proceeding has terminated in the favor of the person being prosecuted or sued (i.e. the future plaintiff in the malicious
prosecution suit must ﬁrst win the suit against him or her).
Let's look at these elements a little more closely.
A criminal proceeding is any process where the government can punish a person -- this ranges from murder to parking tickets.
A civil proceeding is typically where the plaintiff is not a governmental entity -- although the defendant might be
(http://www.alllaw.com/resources/personal-injury/injury-claims-against-government-entities) -- and the plaintiff is suing for money or an
Even if the people bringing the criminal or civil proceeding think they have a winning case and are suing for a legitimate reason when
they begin the case, they can be guilty of malicious prosecution if they discover a reason they cannot win during the case, but continue
the case for improper motives anyway.