Abuse of Process and Malicious Prosecution Lawyer

There are differentiating factors between abuse of process and malicious prosecution. Abuse of process refers to the notion that the plaintiff can sue when a defendant starts legal proceedings with the intention of obtaining results for which the process was not designed. Malicious prosecution, on the other hand, can sue when a defendant “maliciously” prosecutes a criminal case or uses a civil proceeding against the plaintiff when the defendant knows he or she does not have a case.  Within this concept, the plaintiff must have obtained a “favorable termination” of the defendant’s malicious case before they can sue for malicious prosecution. 

Abuse of Process

The elements of an abuse of process claim include an ulterior purpose by the defendant/defendants other than resolving a legal dispute, and a willful act in the use of the legal process not proper in the regular conduct of the proceeding. The legal process portion can be within any part of the lawsuit, not simply the entire lawsuit. The ulterior purpose requirement of this notion can be thought up as even though the defendant has a technical right to use the legal process, they did so to extort something else from the plaintiff. 

Malicious Prosecution 

Malice refers to evil intent, which may be implied if the defendant acted in willful disregard of the rights of the plaintiff, wrongfully acted with a justifiable cause, or acted or omitted a duty betraying the willful disregard of a social duty. Malicious prosecution claims require several components. First, a proceeding. Even if an individual that has brought a criminal or civil proceeding thinks that they can have a winning case, suing for a legitimate reason at the beginning of the case, they can be guilty of malicious prosecution if a reason is discovered that they cannot win during the case, continuing the case for improper motives. Secondly, reasonable grounds is another notion that must be enacted to show malicious prosecution. An individual bringing the original prosecution or lawsuit must have probable cause to which the legal action was legitimate and has a chance of winning. Contrarily, if the individual bringing the lawsuit knows that the action is illegitimate, there is not a need to prove that a hypothetical reasonable person would share the idea that it was illegitimate. 

Next, improper purpose is an additional concept that must be displayed. This notion is piggybacked with the approval of the reasonable ground’s notion. Plaintiff in a malicious prosecution action does not necessarily need to show that the defendant had an improper purpose, but if defense proved they had proper purpose, the plaintiff will not win. Finally, the last criterion for malicious purpose is favorable termination. Plaintiff in a malicious prosecution suit must have defended against, and won, the previous illegitimate lawsuit. To simplify, if the individual was convicted of criminal charges or had to pay damages within a civil lawsuit, they cannot sue properly for malicious prosecution on the basis of that criminal or civil legal action. 

Thanks to our Abuse of Process and Malicious Prosecution lawyer friends at Eglet Adams  for their insight on abuse of process and malicious prosecution.