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Abuse of Process

A civil wrong is a tort, and civil wrongs that don't result in physical harm can fall into a category called "dignitary torts." Dignitary torts cause harm to a person's reputation or dignity. A few examples of dignitary torts are defamation, malicious prosecution, and abuse of process.

Abuse of process refers to a person using the legal system in a way that does not serve the underlying legal action. Instead, abuse of process serves a wrongful or improper purpose. You can sue someone for abuse of process even if they have a valid claim against you.

Here we describe the abuse of process civil lawsuit and compare it to its cousin, the malicious prosecution claim.

The Elements of Abuse of Process

Abuse of process is an intentional tort. A claim for abuse of process arises if someone misuses civil or criminal court proceedings. As with most torts, the elements that a plaintiff must prove to win their case will vary from state to state. The typical elements that a plaintiff must prove in an abuse of process lawsuit are:

  • The existence of an ulterior motive or improper use of process, such as improper harassment
  • An improper act in the use of the process that undermines legal proceedings

For example, a person might use a deposition subpoena for an improper motive unrelated to the lawsuit. This means they'll use the legal process to call in someone randomly for a needless legal interview. But you can't use a lawsuit just to harass someone or cause them mental anguish. Deposition subpoenas should be used for deposing important witnesses, not random people.

A good faith deposition must be used to obtain information about a case, and not to harass or threaten a nonparty. Again, the lawsuit itself may be perfectly valid, while the cause of action involved may also be legitimate. But if the deposition in this example does not serve the purpose of the lawsuit, it's likelier that an abuse of process is taking place.

What about a personal injury lawsuit involving wrongful death? Normally, it should be about protecting the legal rights of someone who truly suffered a loss. If someone has sued and is now stretching out the litigation just to run up your attorney fees, they might be engaging in abuse of process.

Abuse of Process vs. Malicious Prosecution

Abuse of process and malicious prosecution are closely related, but each requires the plaintiff to prove different elements.

A person may have a claim for malicious prosecution if someone maliciously starts or continues a criminal or civil proceeding against them. This means they don't have probable cause (reasonable grounds) that a crime has occurred. By contrast, abuse of process occurs when there is a valid reason for the lawsuit, but a legal tool or process has been misused for ulterior purposes.

To win a malicious prosecution lawsuit, the plaintiff must also show that the legal action was dismissed in their favor. This means there was a favorable termination in the judicial process, such as a dismissal in:

  • A criminal case
  • Criminal charges
  • A criminal proceeding

While wrongful criminal prosecutions may give rise to malicious prosecution claims, even private civil lawsuits involving frivolous claims can lead to malicious prosecution.

In comparison, an abuse of process lawsuit can be brought against someone regardless of:

  • Whether there is an underlying legitimate claim for the legal action; and
  • Whether or not the original case or its counterclaim (counter-lawsuit by a defendant) was dismissed

For more information and resources related to this topic, you can visit FindLaw's section Emotional Distress, Privacy, and Dignitary Torts.

Learn More About Abuse of Process by Speaking to a Lawyer

It can be frustrating to feel like someone is taking advantage of legal processes or legal procedures to intimidate you. If this is happening to you, you may want to contact a skilled personal injury attorney in your area.

If you have a client relationship with a personal injury lawyer, they can provide you with legal advice about whether the other side is engaged in the wrongful use of the judicial process.

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