“Abuse of process” is a form of tort that results when an individual purposely misuses court processes that are not warranted by the underlying criminal or civil legal action. To learn more here’s Abuse of Process – The Basics and Practicalities by Stimmel-Law for more of its description:
“The term ‘process’ refers to the proceedings in any civil lawsuit or criminal prosecution and usually describes the formal notice or writ used by a court to exercise jurisdiction over a person or property. Such process compels the defending party to appear in court, or comply with an order of the Court. It may take the form of a summons, mandate, subpoena, warrant, or other written demand issued by a court. When one files suit, one normally has a summons issued by the court which compels the defendant to appear within thirty days to contest the matter. See American Litigation.
Abuse of process refers to the improper use of a civil or criminal legal procedure for an unintended, malicious, or perverse reason. It is the malicious and deliberate misuse of regularly issued civil or criminal court process that is not justified by the underlying legal action.
Abuse of process includes litigation actions in bad faith that is meant to delay the delivery of justice. Examples include serving legal papers on someone which have not actually been filed with the intent to intimidate, or filing a lawsuit without a genuine legal basis in order to obtain information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. The determination of what in unfair and wrong is for the court to determine on the individual facts of each case.”
In Legal Dictionary’s ABUSE OF PROCESS, the article discusses the difference between abuse of process and malicious prosecution. Here’s an excerpt:
“Abuse of Process vs. Malicious Prosecution
Abuse of process and malicious prosecution are very similar, in that they both seek to cause some difficulty to a party, to harass or intimidate a party, or to delay some proceeding. These issues are, however, different from one another, and proving them in court requires different elements. Abuse of process involves creating additional processes during the course of active litigation (meaning during a lawsuit or criminal case that is already in process). Malicious prosecution, on the other hand, involves initiating a civil lawsuit or criminal claim without good reason, or probable cause.”
Abuse of Process
Civil wrongs that do not cause physical harm can belong to a category known as dignitary torts—torts that have resulted in harm to the dignity or reputation of a person. A few dignitary tort examples are a malicious prosecution, defamation, and abuse of process.
Legally, the term “abuse of process” refers to an individual utilizing the legal system in a manner that isn’t essentially serving the basic legal action, but instead to get another purpose. Though this type of tort may appear similar to “malicious prosecution”—an abuse of claim process can be filed against somebody even though the basic cause of action for the case was lawful.
This article will offer you the common elements of a claim concerning abuse of process as well as how it compares to malicious prosecution.
Abuse of Process Elements
Abuse of process is a form of tort that stems from an intentional misuse of a court process by an individual that isn’t warranted by the basic criminal or civil legal action. As with the majority of torts, the elements that a victim should establish in order to succeed his or her claim will depend from state to state.
On the other hand, the common elements that a victim should establish in an abuse of process case are:
- The existence of a purpose or ulterior motive in utilizing the process, and
- An act in the process use that isn’t proper in the consistent prosecution of the proceedings.
For instance, if an individual uses a statement for an ulterior motive that isn’t related to the claim, there could be a claim for abuse of process available. Once more, the case itself could be impeccably valid (including the cause of action), but in this example, the deposition doesn’t serve the lawsuit’s purpose.
Abuse of Process by FindLaw discusses the common elements of an abuse of process case. Here it is:
The Elements of Abuse of Process
Abuse of process is an intentional tort that arises when a person deliberately misuses a court process that is not justified by the underlying civil or criminal legal action. As with most torts, the elements that a plaintiff must prove in order to win his or her case will vary from state to state. However, the typical elements that a plaintiff must prove in an abuse of process lawsuit are:
- The existence of an ulterior motive or purpose in using the process, and
- An act in the use of the process that is not proper in the regular prosecution of the legal proceedings.
For example, if a person uses a deposition for an ulterior motive that is not related to the lawsuit, then there may be an abuse of process claim available. Again, the lawsuit itself may be perfectly valid (as well as the cause of action involved), but the deposition in this example does not serve the purpose of the lawsuit.
Malicious Prosecution vs. Abuse of Process
Malicious prosecution and abuse of process are quite related, but each tort involves the victim to prove various elements. An individual may claim for malicious prosecution if somebody maliciously commences or continues a civil or criminal proceeding against the plaintiff with no probable cause.
On the other hand, abuse of process takes place when there’s a probable cause or valid reason for the claim, but a process or legal tool has been abused for unknown purposes.
To win a malicious prosecution lawsuit, the victim should also demonstrate that a legal action was terminated in support of the plaintiff. On the other hand, an abuse of process case can be filed against somebody despite whether or not there’s a reasonable underlying cause of action for a legal action as well as whether or not the initial case was terminated.
Get a Free Assessment of an Abuse of Process Case
It can be annoying to think or feel like somebody is exploiting the legal processes to obtain something they desire from you. And if you think that you have been an abuse of process victim or a victim of any other form of tort, and you’d like to know about legal options, then you may like to talk to a personal injury lawyer.