You have been wrongfully sued in a civil lawsuit or wrongfully arrested on a criminal charge. Ultimately, you win your case. Do you have a claim for malicious prosecution against the person who sued you or who filed criminal charges and caused you to be arrested?
There are six elements of a malicious prosecution claim, and we will look at each of them.
1. The institution or continuation of a judicial proceeding.
This first element simply requires that a court case (civil or criminal) has been filed against you. This element includes the continuation of a court case that, in the beginning, may have been made in good faith but then certain facts make it improper to continue the case.
2. The institution or continuation must be at the insistence of the defendant.
When we use the term “defendant” here, we mean either (i) the person who filed a civil lawsuit against you (and who would have been the plaintiff in that lawsuit) or (ii) the person who filed criminal charges against you and caused the government to formally bring a criminal case against you.
3. The court proceeding must terminate in your favor.
This can occur in several ways.
You could go to trial and obtain a jury verdict in your favor.
A plaintiff in a civil lawsuit could simply drop the lawsuit and walk away.
The prosecution in a criminal matter could drop the charges.
However it may occur, you have to obtain a clear victory. If you gave anything in exchange for having the court case dropped (for example settling a civil matter or entering into a plea bargain in a criminal matter), then the case did not end in your favor.
4. The defendant must have instituted or continued the proceeding with malice.
The term “malice” as used here does not mean the same as when we use it in everyday language.
The lack of probable cause for having instituted the court case is evidence of malice. Filing a civil case, or bringing criminal charges, for an improper purpose can also constitute malice.
5. The defendant must have lacked probable cause to institute or continue the proceeding.
Probable cause can take several forms, but it essentially means the defendant had a reasonable basis for believing he had the right to bring the court case against you.
6. You must have suffered damages as the result.
The element is easily met. Having to go through a wrongful court action almost always causes a person damage.
It may be attorneys’ fees, cost of a bond, time in jail, or other losses.
If you believe you have a malicious prosecution claim, be aware that you only have one year after the “favorable termination” in which to file it.
Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.