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malicious prosecution

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tudy

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What is the procedure for filing a malicious prosecution law suit in the state of kentucky.what is the law concerning malicious prosecution.
 


I AM ALWAYS LIABLE

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tudy said:
What is the procedure for filing a malicious prosecution law suit in the state of kentucky.what is the law concerning malicious prosecution.

THE GROWING RISK OF MALICIOUS PROSECUTION CLAIMS AGAINST ATTORNEYS
A. Essential Elements of Malicious Prosecution Claims
The tort of malicious prosecution consists of the following elements:

1. The defendant initiated, continued, or procured civil proceedings against the plaintiff;
2. The proceedings terminated in favor of the plaintiff;
3. The defendant acted without probable cause;
4. The defendant's primary purpose in initiating, continuing, or procuring the civil proceedings was other than securing a proper adjudication of the claim (i.e., "malice"); and
5. The plaintiff sustained injury or damage because of the proceedings.
See Restatement (2d) of Torts Sections 653, 674 (1977); Prosser and Keeton on the Law of Torts Section 119 (5th ed 1984).*



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* Technically, malicious prosecution and wrongful use of a civil proceeding are two distinct torts. The tort of malicious prosecution consists of initiating or procuring criminal proceedings, from an improper motive and without probable cause, against another who is not guilty of the offense charged, and who ultimately gains a favorable termination of the proceedings. The tort of wrongful use of a civil proceeding is the civil counterpart of malicious prosecution, and is based on a prior civil proceeding. The two torts are similar, but interchanging the terms can cause confusion. However, for the sake of simplicity, the term "malicious prosecution" will be used to refer to both torts in this article.



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Malicious prosecution claims are not favorites of the law, and there are significant barriers placed in a plaintiff's way. This reflects the collision of two contradictory and competing policies: (1) the policy favoring the public's need to use litigation as a social means to settle disputes, and (2) the policy to protect individuals from unjustified and potentially oppressive litigation. O'Toole v. Franklin, 279 Or 513, 569 P2d 561 (1977). The policy which prevails will depend heavily on the particular facts of each case.

B. Claims Against Lawyers and Their Clients
The obvious target defendant in most malicious prosecution actions will be the plaintiff in the prior civil proceedings. However, the plaintiff's lawyer may also be sued, Restatement (2d) of Torts Section 674, comments a, b, and c, especially if the plaintiff claims advice of counsel as a defense. Reliance on the advice of an attorney will afford the prior plaintiff a complete defense if (1) the prior plaintiff sought the advice in good faith, (2) the prior plaintiff relied on the advice after full and fair disclosure of all pertinent facts, and (3) the attorney, to the prior plaintiff's knowledge, and no personal interest in the case. Full and fair disclosure is a question of fact for the jury. Restatement (2d) of Torts Section 675(b). See such cases as White v. Pacific Tel. & Tel. Co., 162 Or 270, 90 P2d 193 (1939) and Lampos v. Bazar, Inc., 270 Or 256, 527 P2d 376 (1974).

C. Lack of Probable Cause
The malicious prosecution plaintiff must plead and prove the lack of probable cause, that is, the defendant's lack of a reasonable legal or factual basis for pursuing the prior proceeding against the plaintiff. Probable cause is a question of law when the facts are not in dispute. The existence of probable cause is a complete defense to a claim for malicious prosecution. Prosser on Torts, Section 119.

The defendant need not verify reliable information before initiating litigation. When a reasonable person would investigate further, however, the defendant may be liable for failure to do so. If appearances would cause a reasonable person to investigate further, the defendant has the duty to make such an investigation. If ambiguous circumstances are not present, however, the defendant does not have a duty to investigate further and probable cause exists as a matter of law. Dow v. Sears, Roebuck & Company, 84 OrApp 664, 734 P2d 1387 (1987).

An attorney has probable cause if the attorney reasonable believes that he or she has a good chance of prevailing in the underlying case. Put another way, the test is whether the attorney reasonable believes that he or she has a good chance of establishing the case to the satisfaction of the court or jury, or reasonably believes in the possibility that the claim may be held valid. Restatement (2d) of Torts Section 674, comment e.

The California case of Sheldon Appel Company v. Albert & Oliker, 47 Cal3d 863, 765 P2d 498, 254 CalRptr 336 (1989), created a certain "safe harbor" for attorneys against malicious prosecution claims. That case provided that when there is no dispute as to the facts upon which an attorney acted in filing the prior action, the question whether there was probable cause to institute the prior action is purely a legal question, to be determined by the trial court on the basis of whether the prior action was legally tenable or not as an objective matter. "Probable cause" for bringing a lawsuit, such as would be sufficient to avoid subsequent liability for malicious prosecution, is satisfied if any reasonable attorney would have thought the claim was tenable. This means an attorney may rely upon the facts as related by the attorney's client (even if those facts later turn out not to be true), and can avoid liability for malicious prosecution so long as any reasonable attorney would have thought the claim was tenable. Other states may impose tougher requirements on attorneys, however.

D. Malice
In addition to proving lack of probable cause, the plaintiff in a malicious prosecution case must also prove "malice." Malice, as an element of malicious prosecution, has been defined as the existence of a primary purpose other than that of securing an adjudication of the claim. Restatement (2d) of Torts Section 676. However, the standard for malice may be different between an attorney and client:

"An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action (see Section 675); and even if he has no probable cause and is convinced that his client's claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See Section 676)."

However, as a practical matter an attorney can seldom avoid potential liability simply by claiming "my client made me do it." Instead, the attorney will often be portrayed as the driving force behind the unsuccessful prior litigation.

While malice is a separate element from the lack of probable cause and must be pleaded and proven separately, most courts have permitted a jury to infer malice from the lack of probable cause, depending on the circumstances. Usually the courts will require the plaintiff to show something more than the mere dismissal of the original action in order for the jury to infer malice, but if the underlying facts in the original case are bad (e.g., sloppy legal or factual research, intemperate comments about the original defendant, a great disparity in power between the parties, an apparent desire by the original plaintiff to intimidate or punish the original defendant, etc.), the courts may allow a jury to infer malice without requiring any direct proof.

E. Damages
The Restatement (2d) of Torts Section provides that a plaintiff is entitled to recover:

"***(b) The harm to his reputation by any defamatory matter alleged as the basis of the proceedings, and
(c) The expense that he has reasonably incurred in defending himself against the proceeding, and
(d) Any specific pecuniary loss that has resulted from the proceedings, and
(e) Any emotional distress that is caused by the proceedings."
Comment d. specifically provides that "expense *** reasonably incurred in defending himself" includes costs and reasonable attorney's fees. In addition, most jurisdictions also permit the plaintiff to seek punitive damages.

F. Trial of a Malicious Prosecution Claim Against an Attorney
If plaintiff can allege the essential elements of a malicious prosecution claim against an attorney, and the attorney cannot avoid the claim through the various defenses described above, the trial of the claim can be very difficult. Remember, the simple existence of the malicious prosecution claim means that the underlying claim was unsuccessful. The malicious prosecution plaintiff can easily allege monetary loss, emotional distress, loss of reputation, etc., and can make out the defendant attorney and the attorney's prior client to be villains. By suing both, the malicious prosecution plaintiff can drive a wedge between former attorney and client, and cause each to blame the other (e.g., the former client can claim he or she was only acting upon the advice of the attorney, while the attorney can claim the former client withheld vital facts or provided incorrect information upon which the prior litigation was based). This falling out between defendants can only aid the plaintiff's case.

In addition, discovery in the malicious prosecution case may give the plaintiff complete access to the attorney's case file, and may allow the plaintiff to make the attorney defendant look like a fool, or worse. The attorney will be put on the defensive in trying to explain his or her prior actions after the original litigation has already been dismissed. Loose comments and even insults about the plaintiff in the attorney's file may create an impression of prejudice or malice against the plaintiff. With the benefit of hindsight, the attorney's previous legal and factual research can be made to look inadequate, even laughable.

If these negative elements are combined with an apparent motive on the part of the attorney and his or her former client to intimidate or punish the plaintiff, the potential for significant damages, even punitive damages, can arise, even if the plaintiff did not suffer any tangible harm other than the expenditure of modest attorney's fees. In other instances, the attorney's shoddy work can be portrayed as an effort to extort money from the plaintiff by filing a frivolous or nonmeritorious claim. Jurors won't like what the attorney did, and will readily identify with the plaintiff's plight in facing a potentially ruinous lawsuit.

G. Malpractice Coverage for Malicious Prosecution Claims
Is there coverage for malicious prosecution claims under most legal malpractice insurance policies? Probably not. In some policies, coverage is extended through an explicit coverage grant for malicious prosecution claims. In many policies, however, coverage will only be provided if the claim fits within the general coverage grant. The question of policy exclusions will then arise.

Virtually all malpractice policies include tough exclusions for "intentional wrongful acts" by an attorney. One of the essential elements for a malicious prosecution case is "malice," which almost necessarily implies an intentional wrongful act by the attorney ("the existence of a primary purpose other than that of securing an adjudication of the claim"). Unless there is an explicit extension of coverage for malicious prosecution claims, therefore, or a policy provision which states that the intentional wrongful acts exclusion will not apply to malicious prosecution claims, the insurance carrier will most likely provide only a defense to the attorney, subject to a complete reservation of rights as to any indemnity payments. This can cause the attorney many sleepless nights.

H. Loss Prevention Steps - Avoiding Malicious Prosecution Claims
For all these reasons, attorneys and their malpractice carriers should work hard to avoid becoming the targets of malicious prosecution claims. There are several practical malpractice avoidance steps which can be taken. These steps are described in the following excellent article by San Diego attorney Gregory A. Garbacz.



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SAFE MOVES: REDUCING VULNERABILITY TO
MALICIOUS-PROSECUTION SUITS


Throughout California, malicious-prosecution suits are on the rise. Although few succeed, a malicious-prosecution action can have a devastating effect on an attorney's practice because of the general unavailability of insurance coverage for such claims and the corresponding risk of personal exposure. Here are several simple ways to reduce vulnerability to these claims.

Minimize "Shotgun" Pleading:
In 1974, the California Supreme Court extended liability for malicious-prosecution claims by holding that a claim can be maintained on a single cause of action that lacks probable cause. Bertero v. National General Corp. (1974) 13 Cal.3d 43. This holding was reinforced in Crowley v. Kattleman (1994) 8 Cal. 4th 666, 681, in which the California Supreme Court specifically rejected pleas to overturn Bertero. The effect of these holdings is that a practitioner may be sued based on a single cause of action that terminates on the merits in the opposing party's favor.

Traditionally, many attorneys sought to "cover all bases" by pleading multiple theories of relief, some of which were inconsistent. While such an approach is permissible in unverified pleading, it may increase a practitioner's vulnerability to a malicious-prosecution suit filed by a vengeful opposing party. Accordingly, attorneys should limit their pleading of multiple theories that are supportable under the facts know to the practitioner. To the extent that multiple theories need be pursued, the practitioner should first conduct discovery to support any attenuated causes of action, and then amend the complaint to add the now well-documented additional theories.

Avoid Naming Unnecessary Parties:
An attorney should be especially careful when naming peripheral parties. A practitioner should ensure that he or she has probable cause as to each and every party named, as well as to each and every claim in which that party is named. If in doubt, an attorney should conduct discovery to provide sufficient legal and factual bases for naming each party. For contract claims, a practitioner should never name individuals or entities who were not parties to the contract. Likewise, he or she should also make sure that a viable theory (and facts to support that theory) can be stated for every individual named in a fraud cause of action.

Document all Facts Supporting The Client's Claims:
Counsel should document the client's communication of all facts that support the client's claims. An attorney should ensure that there are sufficient facts, or that reasonable inferences may be drawn from the facts communicated, to support each element of the causes of action presented. Practitioners must be especially attentive to documenting inflammatory allegations, such as fraud or other intentional conduct. Documentation will undermine any future argument that the attorney added such allegations because the attorney sought to obtain otherwise unavailable tort damages or to maximize settlement pressure, not because they were supported by the facts. As to all fraud claims, an attorney should clearly identify each instance of alleged misrepresentation the client communicates to the attorney.

Dismiss Parties or Claims Where Appropriate:
As the litigation progresses, if it appears that a cause of action or a claim against a party is no longer supported by the available facts, an attorney should consider dismissing the claims or parties in exchange for a waiver of costs and a mutual release as to any claims or parties dismissed. If the opposing party will not agree to a waiver or release, the attorney should voluntarily dismiss the claims or parties without prejudice.

In addition to the strategic advantages of streamlining legal theories in preparation for trial, obtaining the client's consent to voluntarily dismiss attenuated claims creates strong arguments in any subsequent malicious-prosecution action that the attorney acted in good faith and that there are no, or limited, damages caused by the claims dismissed. If the claim is dismissed without prejudice, the opposing party will have the burden of proving an additional element - favorable termination. See Haight v. Handweiler (1988) 199 Cal.App.3d 85 (finding that favorable termination as to claims dismissed voluntarily was question of fact).

Take Threats of Malicious Prosecution Seriously:
There is a growing trend toward aggressive pursuits of dismissals through the use of threats of future malicious-prosecution suits. These letters typically fall into two categories: those that focus on the facts and those that focus on the law. The former category is the easiest to deal with.

In regard to threatening letters that focus mainly on the facts, promptly provide a copy of the letter to the client and require a response in writing to each factual allegation in the letter. This response will not only provide the attorney with good ammunition for the case, but also will document the client's view of the "facts" and the attorney's decision to take the threat seriously by investigating it. The client's response will be compelling evidence against allegations of malice. Ensure that all communications remain civil and professional; vitriolic letters may be offered as evidence of malice. See Bertero.

Alternatively, if the dismissal letter primarily relies on a legal analysis, the attorney should consider the opposing party's legal authority and determine if it is controlling. If it is controlling and there are no good faith arguments for distinction or modification, counsel should dismiss the questionable claim without prejudice. If the authority is not controlling, the attorney should still document his or her analysis of the applicable law to demonstrate a prompt investigation and good-faith beliefs.

If a threat of a future malicious-prosecution action is verbal, a practitioner should request that opposing counsel reduce their legal analysis to writing so the attorney can evaluate its merit. This will provide further evidence that the attorney acted in good faith in pursuing his or her client's claims and considered appropriate legal authority. If an opposing party will not respond to this request, this suggests that the request for dismissal was not in good faith or was not supported by controlling authority.

Although the risk of a malicious-prosecution lawsuit can never be totally eliminated, observance of these simple practices may dramatically reduce the legal and financial exposure an attorney faces.

 

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