What Qualifies as Malicious Prosecution?

Malicious prosecution is a claim that you bring after an underlying case - and that can be a criminal case, a civil case, even an arbitration. A common example would be somebody who causes a criminal case to be brought against you or somebody who causes a civil case to be brought against you.

I think it's helpful to understand the elements of that claim:

First is that the defendant - the person you're suing for malicious prosecution - contributed to bringing that action against you. So either they filed the criminal complaint against you in civil court or somehow caused the criminal action to be brought against you.

Two, the prior action ended in favor of the plaintiff. You won the underlying action.

Three, there was no probable cause for the underlying action or malice. They did it intentionally and with an ill intent and then, damages. A common example is when somebody sues you. They have no basis to do it. They're doing it out of spite or malice. You go and litigate that underlying lawsuit and you win. The next suit you bring would be one for malicious prosecution. You were sued. You won the underlying action, the person who sued you had no basis for it and they did it out of spite or malice.

The remedies for malicious prosecution are whatever monetary damages you had in that underlying action. Most commonly, we see that as the attorney's fees that you spent to defend yourself. It's important to note that in a malicious prosecution action, the cost, the fees from the underlying action are recoverable as damages, but in most cases, the costs, the attorney's fees in the malicious prosecution action itself are not recoverable.

If you have more questions, feel free to visit https://burnhamlaw.com/