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  1. #1
    CHEEZHEAD Guest

    Question

    I WANT TO FILE CHARGES AGAINST SOMEONE FOR DEFAMATION OF CHARACTER, SLANDER AND MALIUOS PROSECUTION. WHAT I NEED TO KNOW IS THIS: DOES MY STATUE OF LIMITATIONS BEGIN WHEN I WAS ARRESTED OR WHEN MY CHARGES WHERE DROPPED???? ANY AND ALL HELP WOULD BE APPRECIATED NASHVILLE, TN/ DAVIDSON CO.
  2. #2
    I AM ALWAYS LIABLE is offline Senior Member
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    Originally posted by CHEEZHEAD
    I WANT TO FILE CHARGES AGAINST SOMEONE FOR DEFAMATION OF CHARACTER, SLANDER AND MALIUOS PROSECUTION. WHAT I NEED TO KNOW IS THIS: DOES MY STATUE OF LIMITATIONS BEGIN WHEN I WAS ARRESTED OR WHEN MY CHARGES WHERE DROPPED???? ANY AND ALL HELP WOULD BE APPRECIATED NASHVILLE, TN/ DAVIDSON CO.

    My response:

    Please, don't use capital letters if you wish to respond to the following. Thank you.

    Usually, the Statute of Limitations begins to run on the date of the successful conclusion of the underlying case in the Defendant's favor.

    However, you'll find the following quite interesting, and hopefully help you think 3 times before you expend money to embark on such an adventure.

    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.

    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.

    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.

    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.

    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.

    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.

    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").

    IAAL

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