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What Kinds of Proceedings Can Trigger a Malicious Prosecution Claim?

Malicious prosecution requires “commencing and pursuing” a legal action without probable cause. Most people think a “legal action” means a lawsuit–and it often does–but lawsuits are not the only “actions” that support a claim of malicious prosecution.

Let’s take a look at some of the different varieties of legal actions that may support a claim for malicious prosecution:


A “judicial arbitration” is not the same as a private arbitration. In judicial arbitration, a lawsuit is sent for pre-trial arbitration, usually non-binding in nature, before a neutral third-party arbitrator. Since judicial arbitrations occur as part of the litigation process, they can give rise to malicious prosecution claims (and remedies).


In appropriate circumstances, a defendant who was wrongfully accused of, and prosecuted for, a criminal offense–but acquitted–may be able to claim malicious prosecution. In addition to acquittal, the individual must prove the other elements of malicious prosecution. Mere acquittal, without more, is not generally sufficient to support a malicious prosecution claim.


A complaint requesting “declaratory relief”–usually a declaratory judgment or an injunction–may or may not also include a request for monetary damages, but will support a claim of malicious prosecution (if appropriate) whether or not the plaintiff also attempted to obtain money damages.


Probate proceedings, including a contest or challenge of a will or trust, are civil court proceedings and thus subject to malicious prosecution claims where appropriate. Never contest a will or trust simply because you dislike or disagree with a relative or the executor of an estate. Always consult an attorney to ensure you have probable cause for any contest or other challenge to an action in probate court.


Civil proceedings, including without limitation civil complaints,  “orders to show cause,” and other civil filings will generally support malicious prosecution claims if brought without proper foundation or for improper purposes (combined with a lack of probable cause).

If you believe you have a legal claim against another person, or think another person has wrongfully sued you, consult an attorney immediately. Filing a lawsuit without cause may subject you to legal penalties and claims of malicious prosecution, and if someone wrongfully uses the legal system against you, you may be entitled to money damages and/or an injunction.

If you have questions about malicious prosecution, or think your legal rights have been violated, contact our offices. We would be glad to discuss your rights with you.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP WITH ANY PERSON OR ENTITY. 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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