9 Steps to the

Litigation Process

Chances of

Prevailing at Trial

Malicious Prosecution


Everyone is entitled

to their day in court. But this right may come at a cost to a party who is the subject of a frivolous lawsuit. Because the losing party does not typically have to pay an opposing party's legal fees, there is little deterrent to some people bringing frivolous lawsuits. You have to defend against the frivolous claims, and, unfortunately, you have to pay to do so.


Some file frivolous lawsuits out of spite. Companies sometimes file frivolous lawsuits against other companies in an attempt to get rid of their competition (lawsuits are expensive to litigate, and it is feasible to drain another company's resources with litigation). Sometimes women falsely accuse their husbands of physical abuse to get an upper hand in a divorce.


You should fight such lawsuits. And, you must prevail in an underlying (frivolous) lawsuit(s) in order to thererafter bring a claim against the party who filed the frivolous lawsuit. You must demonstrate that the accuser had no probable cause to bring the action (the frivolous lawsuit), and that such action was brought out of malice.



Some relevant legalese:


A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if


(a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and


(b) the proceedings have terminated in favor of the accused.


Restatement (Second) of Torts § 653 (1977).



Special injury exists for purposes of a malicious prosecution claim involves a balancing of “the societal interest in preventing harassing suits” and the interest in “permitting the honest assertion of rights in our court rooms,” not merely looking to whether a provisional remedy was imposed in the underlying lawsuit.


Junior Clayton POTTER, Jr. v. Ronald SMITH, 2000 WL 34204251, 177 Ill. 2d at 284, (Ill.App. 1 Dist.).


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