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Proving Lack of Probable Cause in Malicious Prosecution Actions

A primary element of malicious prosecution claims is lack of probable cause supporting the underlying suit. The plaintiff in the malicious prosecution action normally has the burden of proving lack of probable cause, and can prove it in a variety of ways:

Lack of Probable Cause For One or More Claims.

To avoid a malicious prosecution claim, probable cause must exist with regard to every element of every claim in the underlying suit. Even if some of the claims were supported by probable cause, if even a single claim was brought without probable cause for prosecution, that may be enough to support a malicious prosecution action.

Lack of Probable Cause to Name or Associate a Defendant.

Probable cause must exist with regard to every defendant named in an action. Bringing a claim or action against a defendant against whom the plaintiff had no probable cause can also support a malicious prosecution action–even if the claims were justified with regard to other named defendants. (However, the defendants against whom probable cause existed cannot bring malicious prosecution claims.)

Lack of Probable Cause May Be an Issue of Fact or an Issue of Law.

Sometimes, lack of probable cause arises because the plaintiff’s case lacked proper factual foundation–the facts were insufficient to create the required probable cause. In other cases, lack of probable cause relates to a weakness in the legal arguments or legality of the claims.

When dealing with issues of probable cause relating to facts, courts generally find probable cause as long as the plaintiff in the original action had sufficient information to reasonably support an inference or belief that the facts were as stated.  No probable cause exists if the plaintiff (or the plaintiff’s attorneys) know the factual basis for the stated claims is false.

Where the question surrounding probable cause arises from the case’s legal foundation, however, the standard is slightly different. Courts judge legally sufficient probable cause according to a standard which asks whether the legal issue was “fairly debatable” and whether the plaintiff and/or his attorney had a reasonable basis for believing the claims were legally valid. This difference is important because courts want to encourage lawyers’ ability to bring untested claims and causes of action, particularly in areas where the law remains unsettled.


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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