Clem on Torts: Chapter 7: Torts Involving Misuse of Legal Process

Copyright 2014, Richard P. Clem
Richard P. Clem Continuing Legal Eduction

Clem on Torts is a comprehensive review of the material covered in a first-year torts class in an American law school. It is available free of charge on this website, and is also available for purchase as an Amazon Kindle book.

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The tort of malicious prosecution is the improper and unjustified bringing of a criminal proceeding against the plaintiff. There are four elements:

  1. The defendant must have instigated a criminal proceeding against the plaintiff.
  2. That proceeding terminated in the plaintiff’s favor.
  3. There was no probable cause. “Probable cause” is defined as a belief in guilt, and the belief must have been justified by fact that would lead a reasonable person to believe that the person was guilty.
  4. There must be malice. “Malice” is broadly defined as being any purpose other than bringing a criminal to justice.

The tort of malicious use of process is nearly identical, but it involves the institution of a civil proceeding.

Abuse of process is the tort of using the legitimate process of a court for any illegitimate purpose.

Clem on Torts is also available at Amazon as a Kindle book.

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