Should You Sue for Malicious Prosecution?

Learn what malicious prosecution is, what you can recover for it, and things to consider when deciding whether to pursue a case.

Most lawsuits are filed by individuals seeking to be “made whole” by the party who injured or wronged them. The injured person wants to be compensated for their losses.

Some people file a lawsuit just to make another person’s life difficult. People often threaten to bury each other in litigation or waste thousands of dollars on legal fees.

Using the legal system to injure somebody else is wrong. In most states, it’s called “malicious prosecution.” (Some states call it “abuse of process.”)

If you’ve been the victim of malicious prosecution, you may be able to recover your attorney fees and other damages. Of course, you have to file and win a wrongful prosecution lawsuit in order to recover your damages. 

Think twice before getting involved in a wrongful prosecution case. Though you may be able to recover a lot of damages, you will be starting a new and risky lawsuit.

This article will explain what counts as malicious prosecution, what you can recover for it, and things to consider when deciding whether to sue.

What Is Malicious Prosecution?

Person buried in crumpled paper

Malicious prosecution is generally defined as the act of filing a lawsuit for an improper purpose without valid grounds. 

Each state has its own definition of malicious prosecution and different rules for filing malicious prosecution claims. It’s important to know the difference and which claim type is proper for your circumstances. 

In most states, you can usually sue for malicious prosecution in one of three categories: 

  • Criminal cases
  • Civil cases
  • Administrative cases

Criminal Cases

The term “prosecution” calls to mind criminal prosecution. In this context, someone who helps bring criminal charges against you may be liable for malicious prosecution. 

For example, California’s jury instructions — what a jury uses to decide a case — show the kind of proof needed. They require that a person be “actively involved in causing” you to face charges, or to cause a prosecution to continue.

If someone falsely tells a police officer that you attacked them, you may have a claim for malicious prosecution. You may also have a claim if someone testified falsely against you in a criminal proceeding, even if they didn’t file a police report.

Civil Cases

Civil cases involve not only personal injury lawsuits, but also disputes over money or property. All civil suits require reasonable grounds in fact and law. If someone breaks a contract with you, then sues you to “bury you in paper” or prevent you from suing them, they are instituting a wrongful lawsuit. 

In the case of a civil lawsuit, there will not be a clear-cut paper trail showing wrongful behavior. Civil wrongful prosecution claims are usually supported by more circumstantial evidence. 

Your evidence might include statements or behavior of the person during their wrongful legal action against you. That evidence might show that the other side is more concerned with making your life difficult than using a civil lawsuit to make themselves whole.

Administrative Cases

Administrative cases involve attempts to injure you by using government regulatory processes.

For example, imagine a contractor named Ed has a problem client who does not wish to pay him. The client files a state contractor board complaint against Ed to attempt to evade payment. The board might discipline Ed or even take away his license. Assuming Ed can win in the administrative case, he may then sue for malicious prosecution.

Damages for Malicious Prosecution

Damages for malicious prosecution are like damages for other types of injuries. The main difference is that in a typical personal injury case, you have been physically hurt and need compensation to recover. In a malicious prosecution case, the injury is primarily financial, reputational, or business-related.

It helps to understand who’s who in malicious prosecution cases: 

  • The person who files the lawsuit is the Plaintiff.
  • The person named as the wrongdoer in the case is the Defendant.

In many states, you may recover attorney fees as damages in a malicious prosecution case. You normally can’t recover attorney fees in personal injury cases. However, in a malicious prosecution case, you incurred those fees because of the defendant’s improper motive and claim.

You’re not limited to economic damages as a malicious prosecution plaintiff. You can also recover for emotional distress and similar items. (Be aware that you need a lot of very convincing evidence to justify emotional distress claims without physical injury.)

Finally, if the malicious behavior against you is shocking, an award of punitive damages may be appropriate. These damages punish behavior that is unacceptable in civilized society. See Cornell Law School’s discussion of punitive damages for more information.

The Cons of Filing a Malicious Prosecution Lawsuit

Lawyer talks to client, who has head buried in hands

If you’re convinced that you have a claim for malicious prosecution, the next step is to think about whether bringing a new lawsuit is wise. Here are three difficulties to consider before you take action:

1. Proving a malicious prosecution claim is harder.

To win in court or settle a claim, you have to be able to prove it. Courts require better evidence to prove a claim for malicious prosecution than a more standard personal injury claim.

In a car accident case, you may have to prove by a preponderance of the evidence that a driver carelessly injured you. In a malicious prosecution case, you also would have to prove that no reasonable person would have believed the lawsuit was okay.

The “reasonable person” standard can be difficult to meet. In most cases, it’s difficult to prove that no reasonable person would have acted as the defendant did. For the judge or jury to believe that, they would likely need a lot of evidence. You might need expensive expert witness opinions and testimony to support your claim. 

2. Malicious prosecution claims are expensive to get to trial. 

The difficulties proving your case mean that you need the right evidence, which means you need an attorney skilled in taking discovery. Discovery is the legal process to seek information, deposition testimony, documents, and other evidence from the opposing side in a case. Discovery is subject to strict court rules that can be hard for non-lawyers to understand and follow.

Costs for documentation, court fees, legal fees, court reporters, and other discovery costs can add up fast. Needless to say, your malicious prosecution attorney would also have their own bills. 

3. You can’t file your malicious prosecution lawsuit until you win the first case against you.

You can’t file a malicious prosecution claim until you have won the original wrongful case against you. A malicious prosecution action can thus double your legal costs.

You probably paid an attorney to defend you in the wrongful case against you. You will then have to pay legal fees to the attorney who helps you file a malicious prosecution lawsuit.

The cost and headache of this type of claim must be taken very seriously. Still, despite the cons, there are times when a malicious prosecution claim is both just and necessary.

The Pros of a Malicious Prosecution Case

Two men in suits shake hands

On the plus side, even difficult cases can help you get the recovery you need in terms of money and things that are worth even more.

1. A successful malicious prosecution case could force the other side to pay your attorney fees.

One of the benefits of a malicious prosecution claim is that you may be able to recover your attorney fees from the wrongful action. 

Some people are surprised to find that they can’t usually recover attorney fees in American courts. If you can, it’s rarely easy. 

Malicious prosecution is different. The injury in this type of case is an abusive legal proceeding (the original case). Any fees or costs incurred as a result of the wrongful case are thus recoverable as damages. 

2. You may be able to recover damage to your business.

Financial damages to you and your business may also be recoverable in an action for malicious prosecution.

For example, you can seek to recover lost income caused by harm to your business’s reputation. This is especially true where the claim relates to a wrongful administrative action.

3. A successful claim can restore your good reputation.

If you have been wrongfully sued, you probably feel the need to clear your name. Having a public record showing that you are in the right could be your most valuable win. A good reputation is priceless. Even if you don’t recover a money judgment, it can be invaluable for your business. 

Consider Ed the contractor again. His customer filed a complaint against him in order to avoid payment. By winning a malicious prosecution case, Ed has a court judgment showing the earlier action against his license was wrong. That public record will clear up any doubt that Ed is an ethical contractor who does good work. 

Making You Whole

Woman smiling at camera

“Malicious prosecution” is frequently misunderstood. It should never be used carelessly, but it can be a powerful tool for restoring you or your business after wrongful attempts to harm you have failed.

Criminal, civil, and administrative justice require that the claims filed are fair and brought for a proper purpose.

If someone has misused the legal process against you, contact an attorney for a free consultation about your rights and the proper legal remedies in your state.

Matthew Carter, Esq. has been a licensed attorney since 2004. He’s admitted to practice law in California and Nevada, where he was awarded the rating of AV – Preeminent. Matthew has successfully handled a variety of personal injury and wrongful death cases, as well as trials, appeals, and evidentiary hearings throughout state and federal... Read More >>


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