Abuse of Process

Abuse of Process

It should be obvious that the purpose of the civil justice system is to permit people to obtain justice. Unfortunately, people sometimes try to use the civil justice system for improper purposes, such as revenge. As one would expect, using the civil justice system solely for improper purposes is prohibited by law. The personal injury lawsuit that addresses improper use of the civil justice system, and improper use of the criminal justice system other than malicious prosecution, is known as abuse of process.

Using a Legal Process Just to Harass

People have a general right to not be abused by an unreasonable use of a legal procedure or process, such as the procedure and process of subpoena, whereby a person is commanded to appear and testify in a legal proceeding. People have a general right to not be needlessly brought into a legal proceeding and, perhaps, needlessly incurring the expense of retaining a lawyer.

In most states, the lawsuit of abuse of process is the lawsuit of using criminal or civil procedures or processes solely for an improper ulterior purpose. The essence of the lawsuit is the abuse of the legal system, even if a case terminated in the abuser's favor.

Notice that abuse of lawsuit applies only where a legal procedure or process is used solely for an improper ulterior purpose. As a practical matter, the law cannot prevent ulterior purposes that are intertwined with legitimate purposes.

The classic example of abuse of process is where the defendant has a subpoena issued to the plaintiff, requiring the plaintiff to appear and testify in a legal proceeding, just to harass the plaintiff.

The Elements of Abuse of Process

The elements of abuse of process are (1) the use or misuse of a legal proceeding or process (2) solely for an improper ulterior purpose (3) causing (4) damages. As a practical matter, special damages and punitive damages, if any, must also be proven.

In addition to the lawsuit of abuse of process, civil procedure rules and statutes, such as Rule 11 of the Federal Rules of Civil Procedure, may also permit a court to penalize litigants and their attorneys who engage in frivolous conduct and other improprieties.

Defenses to Abuse of Process

Defenses to abuse of process include challenging the plaintiff's case, privilege or immunity, acting in good faith, and acting on the advice of an attorney after making a full disclosure of the relevant facts.

Copyright 2009 LexisNexis, a division of Reed Elsevier Inc.