Our legal system is a powerful tool and the ability to use it to redress wrongs is a cherished right of the average American. Even in the 19th Century Americans were famous for enjoying the use of the courts and employing them far more than the average European. Unlike most of the world, our courts are a powerful branch of our State and Federal governments and remain the most vital arena to protect individual liberties. See our articles on American Litigation and Criminal Law. The average American can use these powerful institutions to confront and seek relief against the largest entity and has the same rights to the legal process as the giant corporations-if the fight can be afforded. See our article on Buying Justice.

The downside of such a system is that it can be abused. The turmoil and expense of litigation can cause significant harm in and of itself and may be a weapon to injure another even if the underlying case allegedly justifying the action is not considered viable by the very party bringing it. The case, itself, becomes the tool used to harm another.

That can be actionable but the care of the courts to assure ready access to the courts for all persons creates a tremendous practical burden on the plaintiff to prevail in such an action. They are not impossible to win. They are difficult and this article shall discuss the elements, the usual issues confronted and the practicalities of bringing…or defending…an action for abuse of process.


The Basic Elements of the Action:

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.

It is important to understand that simply because the other party has a weak case does not mean that there was abuse of process, even if that party eventually loses the case. The key elements of abuse of process is the malicious and deliberate misuseof regularly issued civil or criminal court process that is not justified by the underlying legal action, and that the abuser of process is interested only in accomplishing some improper purpose similar to the proper object of the process. Abuse of process is an intentional tort. Abuse of process encompasses the entire range of procedures incident to the litigation process such as discovery proceedings, the noticing of depositions and the issuing of subpoenas. Pellegrino Food Prods. Co. v. City of Warren, 136 F. Supp. 2d 391, 407 (W.D. Pa. 2000).

The key is state of mind and that is one reason such cases may be difficult to prove. Being wrong, being stubborn, indeed, being stupid is not enough. One must intentionally seek to abuse the system. As one client put it, “My problem is that the fellow was too stupid to plot against me. He simply really though his absurd claim was a good one. I wish he had been smart enough to plot against me!”

Lawyers who are proven guilty of intentional abuse of process can be subject to discipline and punishment. Sometimes abuse of process may occur accidentally, such as an honest belief in mistaken facts used to bring a lawsuit against an improper party, but such missteps may be corrected through voluntary measures. In short, once a mistake is discovered, if it is promptly corrected, abuse of process does not lie.

Note, however, that, no claim for abuse of process would lie where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. Al Hamilton Contracting Co. v. Cowder, 434 Pa. Super. 491 (Pa. Super. Ct. 1994).

Cognizable injury for abuse of process is limited to the harm caused by the misuse of process. It does not include harm such as conviction and confinement resulting from the process’s being carried through to its lawful conclusion. Heck v. Humphrey, 512 U.S. 477 (U.S. 1994).

In McGann v. Allen, 105 Conn. 177, 191, 134 A. 810, 815 (1926), the court held that expenses incurred by the plaintiff in defending herself against crimes charged against her were not compensable in a suit for abuse of process, since “damages for abuse of process must be confined to the damage flowing from such abuse, and be confined to the period of time involved in taking plaintiff, after her arrest, to [defendant's] store, and the detention there.”

The following elements constitute the intentional tort of abuse of process.

  • The malicious and deliberate misuse or of regularly issued civil or criminal court process that is not justified by the underlying legal action.
  • The abuser of process is interested only in accomplishingsome improper purpose similar to the proper object of the process.

A wrongful use of processes such as attachment of property, unjustified arrest, subpoenas to testify, executions on property, unfounded criminal prosecution, and garnishee orders are considered as abuse of process.

A typical example is found at In Drum v. Bleau, Fox & Associates, 107 Cal. App. 4th 1009 (Cal. App. 2d Dist. 2003), defendants represented a client in a legal malpractice action against plaintiff. Judgment was entered in favor of the client, but was stayed. Defendants obtained an execution order from the Court while the stay was in effect. As part of execution, all funds in the plaintiff’s accounts were frozen because of the levy. It was argued by the plaintiff that the defendant purposefully violated the stay for harming him and with the intention to deprive him of his property and legal rights. The court concluded that the defendants were liable for abuse of process.


The Need to Win the First Round and Motive:

In order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff has to prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor (2) was brought without probable cause; and (3) was initiated with malice. See Babb v. Superior Court (1971) 3 Cal.3d 841, 845 (92 Cal. Rptr.) 179, 479 P.2d 379; Grant v. Moore (1866) 29 Cal. 644, 648; Albertson v. Raboff (1956) 46 Cal.2d 375, 383 (295 P.2d 405).

The same set of facts may lead to different torts of malicious prosecution and malicious use of process. Franco v. Mudford, 2002 Mass. App. Div. 63, 2002 WL 539065 (2002). In some jurisdictions, the term “malicious prosecution” denotes the wrongful initiation of criminal proceedings, while the term “malicious use of process” denotes the wrongful initiation of civil proceedings.

Motive as an Element:

It is important to note that ulterior motive or purpose required in an abuse of process action can be in the form of coercion to obtain a collateral advantage that is not properly involved in the proceeding. Nienstedt v. Wetzel, 133 Ariz. 348 (Ariz. Ct. App. 1982). However, if the process is used only for the purpose for which it was designed and intended, then mere ill will or spite towards an adverse party in a proceeding will not constitute an ulterior or improper motive Sage International, Ltd. v. Cadillac Gage Co., 556 F. Supp. 381 ( E.D. Mich. 1982).

The question whether malice is an element of abuse of process depends upon the jurisdictions. In some jurisdictions malice is not considered as a necessary element of the tort of abuse of process except where punitive or exemplary damages are sought. In some other jurisdictions, proof of malice is required in order to sustain a claim for abuse of process.

In Montgomery GMC Trucks, Inc. v. Nunn, the plaintiff was the buyer and defendant was the truck dealer. The plaintiff purchased a truck from the defendant that was plagued with problems and was eventually subjected to a garagemans’ lien for repairs. The defendant refused to release the possession of the vehicle to the plaintiff until he paid the cost of repairs, while the plaintiff refused to pay the bill. The plaintiff took the truck while on a test drive and the defendant filed a criminal complaint.

The plaintiff contended that the defendant used the writ of attachment to attach the truck and trailer for the improper purpose of mental and financial draining of plaintiff and also an ulterior motive by coercing plaintiff to pay a false and inflated bill. The plaintiff claimed this to the tort of abuse of process.

The court observed that the defendant did nothing more than pursuing his claim for the repair bill. Moreover, plaintiff admitted that he owed some money to the defendant. The court found that the defendant used legal process to collect an unpaid account secured by a lien on plaintiff’s truck and held that there is no abuse of process.

What makes such cases often difficult is that malice or wrongful intent is an element requiring proof as to the state of mind of the accused. Malice denotes that condition of mind manifested by intentionally doing a wrongful act without just cause or excuse. State v. Burlison, 255 Neb. 190 (Neb. 1998). Malice is evidenced either when the accused acted with a sedate, deliberate mind or committed any purposeful and cruel act without any provocation. Branch v. Commonwealth, 14 Va. App. 836 (Va. Ct. App. 1992).

However, the question whether malice is an element of abuse of process depends upon the jurisdictions. In some jurisdictions malice is not considered as a necessary element of the tort of abuse of process except where punitive or exemplary damages are sought. In other jurisdictions, proof of malice is required in order to sustain a claim for abuse of process.

Actual malice is often not required in an abuse of process claim. The improper purpose element of an abuse of process claim can take the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself. Therefore, it is the use of the process to coerce or extort that is the abuse, and need not be accompanied by any ill will. Swicegood v. Lott, 379 S.C. 346 (S.C. Ct. App. 2008).

In Gause v. First Bank of Marianna, the appellee bank filed a suit against appellant demanding payment on a note. Appellant filed a counterclaim against appellee bank for abuse of process and malicious prosecution. Appellant contended that malice was not an element of a cause of action in abuse of process. The court observed that malice is not an element of abuse of process in the particular case law.

Example: In one case known to the writer, a tenant negotiated to buy a grocery business and obtained an assignment of the lease from the landlord. The parties agreed to extend the lease for three years. The tenant signed the lease for a corporation that became nonexistent two days after execution of the lease. When the lease expired, the parties operated on a month to month lease. The landlord insisted the tenant sign a long term lease, but the tenant declined. The landlord notified the tenant to either sign a long term lease or vacate the property before a certain date and the tenant rejected both the conditions. The landlord filed an action for eviction and the tenant contended that the defendant was not him, but the corporation. The landlord later dismissed his action against the tenant and sued the corporation. The court found the evidence did not support findings of the wrongful use of the eviction process and the existence of malice necessary to show the landlord’s abuse of process.

Role of Probable Cause to Bring Action

Probable cause is defined as the reasonable belief, founded on known facts established after a reasonable pre filing investigation, that a claim can be established to the satisfaction of a court. Weststar Mortg. Corp. v. Jackson, 133 N.M. 114 (N.M. 2002). A want of probable cause need not be established in order to claim for abuse of process. United States v. Chatham, 415 F. Supp. 1214 (N.D. Ga. 1976). However, facts which shows that the person commencing the litigation had knowledge or had reason to know that his/her claim was groundless will be relevant to prove that the process was used for an ulterior purpose Fishman v. Brooks, 396 Mass. 643 (Mass. 1986)].

Need for End of Original Action Favorable to Plaintiff as Requirement

According to common law rule, an action for abuse of process cannot be instituted by a party who is not discharged of guilt. However, favorable termination of prior proceedings is not always considered as an element of a cause of action for abuse of process in all jurisdictions. There can be a favorable settlement or abandonment of the claim. In most jurisdictions, however, favorable termination is required and as an element of practicality, if you failed to win the underlying claim, you will find the Trier of fact seldom impressed with your abuse of process claim.



It is usually required that a person who brings a claim for abuse of process will have to plead and prove that injury or damages resulted from the irregularity of the process. In such cases, mere vexation or harassment is not regarded as sufficient loss to give rise to the tort Ion Equipment Corp. v. Nelson, 110 Cal. App. 3d 868 (Cal. App. 1st Dist. 1980). Note that punitive damages may lie. See our article on Measurement of Damages.


Persons Liable:

Persons using a legal process with malice in order to attain a personal purpose not similar to what it the crux of the litigation are liable for intentional tort of abuse of process. Any person who procures unnecessary and improper initiation of a process by a third party will also be liable for damages for abuse of process. If a non-litigant who actively participate in a civil proceeding that results in an improper initiation of proceeding, s/he can be liable for damages for abuse of process.

The use of criminal process in the court system in an effort to collect a civil debt will support an action for abuse of process. McCornell v. City of Jackson, 489 F. Supp. 2d 605, 610 (S.D. Miss. 200).In an action for abuse of process, the injured person has a remedy against anyone who intentionally procures, participate in, aid, or abet the abuse of process. Anyone who advises or consents to, adopts or ratifies the abusive acts will also liable as joint tortfeasors.


A judicial officer is generally exempted from civil liability for abuse of process if:

  • The jurisdiction of the officer is complete and attaches to the person and the subject matter in connection with the alleged illegal acts that are committed;
  • The officer acts within the scope of his/her jurisdiction and in a judicial capacity.

However, a judicial officer can be held liable for abuse of process if the officer acts without any jurisdiction and commits the abuse while acting under the pretense of his/her official capacity. In Osbekoff v. Mallory, 188 N.W.2d 294 (Iowa 1971), an owner’s vehicle was involved in an accident which was driven by another person. The owner appeared before the mayor who was acting in his role as magistrate, to answer certain criminal charges. The mayor ordered that the possession of the owner’s vehicle will be retained by the mayor until the owner pays off certain civil debts. The owner filed an action against the mayor alleging abuse of process.

The court observed that the mayor was not judicially immune from the owner’s lawsuit. The owner’s presence in the mayor’s court to answer to a criminal charge did not give the mayor any jurisdiction to hear and determine the owner’s property rights in the vehicle.


An attorney is protected from the liability for defamation that occurs during a judicial proceeding. However, such protection may not provide an attorney with an absolute defense to liability for abuse of process. Alexandru v. Dowd, 79 Conn. App. 434 (Conn. App. Ct. 2003). Therefore, an attorney can be made liable for damages for abuse of process for acts that includes personal acts, or acts of others instigated and carried on by the attorney. Lambert v. Breton, 127 Me. 510 (Me. 1929).

A plaintiff has to establish that the alleged misconduct resulted primarily from the attorney’s ulterior motive or malice to state a claim for abuse of process against an attorney. Journeymen, Inc. v. Judson, 45 Ore. App. 249 (Or. Ct. App. 1980)

A mere institution of legal action by an attorney will not constitute abuse of process, even it is done with an improper purpose or motive. However, if it is proved that the attorney performed some additional act which is not proper in the regular prosecution of the proceedings, then the attorney can be held liable of abuse of process. Epps v. Vogel, 454 A.2d 320 (D.C. 1982)



We often receive calls from outraged victims of our judicial system who, after spending tens or hundreds of thousands of dollars winning a case, see that the cost benefit did not justify the exercise and also realized they had no choice on spending the money since they were sued. Often they comment that the other side must have known that their case was nonsense and that they should be liable for all the fees incurred…doesn’t abuse of process apply?

First, attorney fees can be awarded to the prevailing party if the right homework was done in the contractual setting. See our article The Acid Test Clause. Planning for the conflicts that are inevitable in the world of business requires planning for the cost of legal conflict.

More importantly, the right to use our courts is jealously guarded by the courts and all judges and juries know that someone must lose in every case brought. Simply because you win does not mean abuse of process arose and you will need additional powerful evidence to achieve a good chance for prevailing in that cause of action.

Most successful cases now derive from access to documentation, such as e mail admissions in which a party admits knowing their case is groundless but states they will continue to “punish” the other side. See Measurement of Damages. Defendants sometimes make stupid admissions to third parties or act so outrageously that such evidence may be developed. But the simple fact is that bringing an abuse of action case is difficult and one must overcome the initial reaction of the courts that one is seeking to ban access to the courts or punish someone simply for losing the case. One must have effective evidence of inappropriate motivation…usually an admission…before one can have confidence in the case. Do not confuse your victory in the case with suddenly having a cause of action for abuse of process against the loser.

That said, there are those who see the courts as games and the use of the process as a tool to injure others not due to the verdict possible but due to the process itself. It is akin to a blocker in football who seeks to harm the other player, not to block the player out of the way of a running back. If it can be proven damages may lie. And if you are a potential defendant who has just lost a case and are worried about facing that danger, if your motives were simply to present your case and seek the relief sought, then you probably are not in peril. They remain difficult cases to win.