Attorneys at Our Firm

Malicious Prosecution and Abuse of Process

Both the criminal and civil legal system can be used improperly and for purposes other than intended. If an individual brings a criminal complaint against another person with knowledge that no crime has been committed, a claim of malicious prosecution might arise. Similarly, if an individual brings a civil claim against another person that is frivolous or without a sufficient basis, a claim of abuse of process may be appropriate.

These two separate, but related torts provide means by which a plaintiff may recover for misuse of either the criminal or civil legal system.

Malicious Prosecution

Malicious prosecution arises when an individual or entity uses the legal system to bring a criminal complaint or charge against someone, even though that individual or entity knows that either (1) no crime has been committed; or (2) the person they accuse is not the individual who committed the crime.

A criminal complaint is only found to have been pursued maliciously if it was done intentionally for an improper purpose and lacks any basis in fact. No claim arises where, for example, an individual mistakenly identifies someone as having committed a crime who is later determined to be the wrong individual. Similarly, no claim arises where an individual has actually committed a crime, even if it is reported by someone not out of concern for the underlying criminal offense, but as part of an effort to embarrass or harass that individual for their own personal gain.

Generally speaking, the plaintiff in a malicious prosecution action must have already obtained a favorable result before filing a malicious prosecution suit. An individual who has been found guilty of the underlying criminal offense cannot pursue a civil claim of malicious prosecution against anyone whose actions led to prosecution of the charge.

In summary: To prove malicious prosecution, a plaintiff must prove the conduct of the individual or entity (including the Commonwealth itself) fulfilled the following elements by a preponderance of the evidence (e.g. it is more likely than not):

  • First, the defendant’s conduct was malicious, and not simply in error.
  • Second, the defendant instituted or cooperated in the institution of the charges;
  • Third, the defendant pursued the case without probable cause; and
  • Fourth, the case was terminated in a manner not unfavorable to the Plaintiff.

The process of filing criminal charges is relatively simple in Virginia. Any individual can file a criminal complaint by swearing out a warrant in front of a magistrate judge, including both law enforcement officers and private individuals. Malicious prosecution can arise from individuals falsely filing charges or the police maliciously targeting an individual or business with knowledge that no crime has been committed by the person the individual or business named.

The requirement that the underlying criminal case end in a manner “not unfavorable” to the Plaintiff means that a civil claim for malicious prosecution cannot be brought until after the criminal prosecution at issue is complete. The outcome of the criminal prosecution may be deemed unfavorable even if the criminal defendant is ultimately found guilty of a different or lesser charge, which is a common result of a plea bargain. If an appeal is taken, the proceedings are not terminated until the final disposition of the appeal.

Importantly, because a claim of malicious prosecution cannot be brought until after the underlying criminal prosecution is complete, the statute of limitations for these claims does not begin to run until that time.

Abuse of Process

Abuse of process is appropriate when an individual or entity initiates legal proceedings for a purpose the legal process was not designed to produce. This extends beyond the filing of a civil lawsuit; a claim of abuse of process may also arise from reports to administrative agencies or other similar legal reports and filings. Abuse of process can also arise during ongoing civil litigation, such as through the filling of a frivolous counterclaim or by seeking abusive discovery.

The most important element of abuse of process is that a plaintiff show an “improper purpose” to the defendant’s actions. An improper purpose requires a showing that the defendant used the legal system to extort, force, or create some other illegal effect through the use of an otherwise legal process. This may be demonstrated where someone files a lawsuit against an individual for a purpose other than securing the proper adjudication of the claim, such as to force a settlement from a claim known not to be meritorious.

if you believe that you might have a cause of action, especially against a city, county, or the Commonwealth of Virginia, you need to take action as quickly as possible. Notice of these claims are subject to time limits and some of those limits are quite short. Notice of these claims can be required before filing. It is vital to your claim that you contact a lawyer as soon as possible.


When misconduct occurs in the process of litigation, the appropriate way to address that misconduct is through court-ordered sanctions. Sanctions can include an award of attorneys’ fees and costs, a monetary penalty, or other consequences that the court deems appropriate.

Sanctions can arise when a litigant fails to engage in the discovery process, brings a frivolous claim, pursues a frivolous defense, or engages in other inappropriate behavior during litigation.

The Erlich Law Office can assist you with claims for malicious prosecution and abuse of process. We can also advise your current counsel or become your counsel for sanctions purposes.