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Why is Malicious Prosecution a “Disfavored” Claim?


“Disfavored claim” or “disfavored cause of action” is a legal term most commonly used to describe or refer to claims which might have a “chilling effect” on an ordinary person’s willingness or ability to bring a lawsuit against another person.

For example: the threat of being sued for malicious prosecution, and the fear of being held liable for it, might make people think twice about bringing an otherwise legitimate lawsuit as well as frivolous ones.

In addition, certain claims may have a chilling effect on a lawyer’s willingness to accept a client. Attorneys do not like being accused of malpractice (“professional negligence”), and would be less likely to take on a client’s claims if the attorney could be held liable for malicious prosecution every time his or her client lost a case.

Courts treat “disfavored claims” a little differently than other kinds of lawsuits, but a proper malicious prosecution claim, properly pled and brought before the court, does not reflect negatively on the person–or the attorney–who brings it. Properly used, a claim of malicious prosecution provides a valuable opportunity to right a wrong suffered by a person improperly and unjustly accused in a previous legal action.


Absolutely not.

Malicious prosecution is a valid, and viable, legal claim, which exists to protect an individual’s right to be free from malicious or inappropriate prosecution or civil litigation. Some courts may view the claim with extra caution because of its disfavored status, but a well-pled malicious prosecution claim which is founded on proper evidence will not be disallowed–or lose–simply because the claim falls within a group of legal actions that bear the label “disfavored claims.”

The key to a successful malicious prosecution claim is finding and hiring legal counsel that understands the elements of the claim and the facts which must be proven to prevail. Malicious prosecution is not the place for the plaintiff to try and litigate without a lawyer’s assistance. (In fact, it’s never a good idea to represent yourself in a legal action, regardless of the nature of the claim. If you believe you have a legal claim, or if someone files a lawsuit against you, consult a licensed attorney promptly to protect yourself, your property, and 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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