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What is “Abuse of Process”?


People often confuse “abuse of process” claims with causes of action for malicious prosecution. Although abuse of process is a separate tort (the legal term for a “civil wrong” against another person), the distinction between abuse of process and malicious prosecution can be confusing for non-lawyers and others without specialized legal training.

While a malicious prosecution claim can be brought against a plaintiff who files a lawsuit against a defendant with improper motives and without probable cause to support the suit, an action for abuse of process requires something more than simply filing suit without probable cause.


To prevail on an abuse of process claim, the plaintiff must prove:

1.  The defendant (who was generally the plaintiff in some prior action which gave rise to the abuse of process claim) used the legal process in some willful way which was not proper or in accordance with the regular course of a legal proceeding; and

2. The defendant had some improper ulterior motive for his or her abusive use of the legal process.

Generally, abuse of process requires something more than merely filing a lawsuit without probable cause or with an improper motivation. Where malicious prosecution may overlap with abuse of process claims, not all valid malicious prosecution claims will also support a finding (or a claim) of abuse of process.

However, it’s not uncommon to see abuse of process pled alongside malicious prosecution, and in many cases the evidence (and the wrongful actions by the party against whom the claims are brought) may support both claims.

Since the distinction between malicious prosecution and abuse of process–like the relationship between them–can be complex and highly technical, it’s best to have your claims evaluated by an experienced attorney rather than trying to determine the validity of your claims on your own. If you believe that someone filed a lawsuit against you for malicious or illegal purposes, or behaved illegally during the course of a lawsuit, contact a lawyer immediately. Delay may harm your legal rights.


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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