Malicious Prosecution

While surfing the Internet in doing a little research on my previous blog The "Finger" I came upon some interesting material related to malicious prosecution.

Malicious prosecution is a common law intentional tort (lawsuit), while like the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution.

In a malicious prosecution lawsuit the former defendant (respondent) is now the plaintiff and the defendant/s may be the person/s who initiated the action, the attorney/s (or the law firm who prosecuted said action) and those who contributed or assisted in giving authorization or the use of public funds to proceed in the prolonged prosecution of said action against the, now plaintiff. The plaintiff has a right to a jury trial of his peers.

The elements of a malicious prosecution care are

1. that the defendant filed and/or prosecuted the underlying civil action;
2. a favorable termination of the prior case;
3. the absence of probable cause, meaning that no reasonable attorney would have considered it to be tenable;
4. malice, which can be implied from a conscious disregard for the consequences, from a lack of probable cause and from inadequate investigation and research, and
5. damages

Since the re-litigation of the former action will be prohibited, the favorable termination of that case is the starting point of the malicious prosecution case. Therefore, before the plaintiff's first witness is called, plaintiff should offer, as Exhibit "1" , the judgment in the underlying action. If a statement of decision was made, that document should also be offered.