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Not All Proceedings Will Support Malicious Prosecution Claims

The tort of malicious prosecution applies to many types of cases, but not every case will support a claim of malicious prosecution. In addition to meeting the elements of the tort itself, the underlying case or proceeding that gave rise to the malicious prosecution claim must be a proper type of case–meaning one that the courts have recognized as supporting malicious prosecution, or at least not falling within the class of cases that courts have held cannotform the basis of malicious prosecution claims.

The following types of cases generally cannot give rise to malicious prosecution:

1. Small Claims Cases. The defendant in a small claims case cannot subsequently sue the plaintiff for malicious prosecution.

2. Discharge of a Debt in Bankruptcy. Generally, petitioners in bankruptcy court are seeking to obtain discharge (or reorganization) of their debts. These cases generally do not support a subsequent claim for “malicious prosecution,” though bankruptcy courts do have the ability to sanction plaintiffs for abuse of the bankruptcy system.

3. Family Law Cases.  As a general rule, cases and proceedings in family courts cannot form the basis of malicious prosecution cases. This may surprise some people, because family law cases are often highly emotionally charged and motivated by personal issues as well as legal ones; however, courts do not normally permit malicious prosecution actions arising out of family law matters.

4. Informal Malpractice Investigations. When an individual makes a complaint to the licensing boards for doctors, lawyers, or psychologists, and the complaint triggers an informal investigation to determine whether malpractice occurred, the complaint itself is not normally sufficient to support a claim of malicious prosecution. This is because the informal proceedings do not constitute a “legal proceeding” sufficient to trigger the tort. However, if the licensing body subsequently files a legal action or formal disciplinary action, that action may support a claim of malicious prosecution, if the other elements of the tort are present and provable.

Be aware: this is not an exhaustive list of actions which will not support malicious prosecution claims. If you believe you were wrongfully sued, or maliciously prosecuted by the state or a private individual, consult an experienced attorney promptly to see whether your claims will support a legal action. Malicious prosecution is a technical claim, and your best chance of success is hiring a lawyer who understands the technicalities and how the law applies in your case. Delay could harm your right to recover, so talk with a lawyer as soon as you believe you have a claim.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE. Your rights and experiences may vary. Never use an article like this one to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, consult an experienced malpractice lawyer immediately for an evaluation of your possible rights and claims.

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