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Proving Malice in Malicious Prosecution, Part 2

Malicious prosecution involves the wrongful (malicious) institution of a legal action, without probable cause, in an attempt to use the justice system for something other than its intended function. A normal lawsuit involves the attempt to redress a legally-recognized wrong, either by obtaining a judgment for damages, seeking declaratory relief, or other legally-permitted methods.

In a malicious prosecution, however, the plaintiff instituted a legal action for wrongful purposes, with “malice,” and the person or entity claiming malicious prosecution will have to prove that malice existed in order to prevail.


The plaintiff in the malicious prosecution action (who was generally the defendant in the underlying action in which malice is claimed) has the burden of proving malice as an element of the malicious prosecution claim.

Malice equates to filing a lawsuit with an “improper purpose,” for example:

— Initiating a lawsuit or other proceeding solely to cost the defendant money or deprive him (or her) of property or rights (when the person filing the suit was not also pursuing another legitimate legal claim).

— Commencing a proceeding solely for purposes of forcing a settlement, where the desired settlement has no relationship to the merits of the plaintiff’s claim.

— Initiating a lawsuit or other proceeding where the plaintiff knows (or does not have a reasonable belief) that his or her claims are valid.

— Commencing proceedings because of hostility or a desire to harm the defendant (as opposed to the desire to enforce a legal claim or pursue a just cause).


Direct proof of malice may include admissions by the party who filed the malicious action–including declarations of a malicious motive, prejudicial intent, or hostility.

Indirect proof of malice includes other evidence–aside from direct admissions or other direct forms of evidence–which, taken as a whole, demonstrates wrongful intent. However, plaintiffs must be careful when relying upon indirect or inferential evidence to prove the necessary malice.

Also, plaintiffs should take care to avoid confusing malice with probable cause–they are different elements, and proof of one does not necessarily equate to proof of the other. A plaintiff who brings a lawsuit with malice may still have justification for filing suit–and filing a suit without probable cause (though often suggestive of malice) is not necessarily definitive proof that malice existed.

Some courts have found that where a party filed suit despite provable knowledge that the facts did not support a finding of probable cause for litigation, it was possible to infer malice, on the theory that people do not normally file knowingly frivolous lawsuits in the absence of malice. However, other courts have held that probable cause (or the lack thereof) is not sufficiently conclusive as to the mental state of the person who filed the suit, and thus cannot support a finding of malice without additional evidence.


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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