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Malicious Prosecution: Bad News Open Article in Another Window
August 2000
Malicious prosecution, the disfavored tort, continues to receive appellate attention.
General Credit
1. Malicious prosecution (MP) is a disfavored cause of action.  True  False
2. Lack of probable cause to bring the underlying case (UC) is determined by the court in an MP action.  True  False
3. A subjective standard is applied in determining the element of probable cause to bring the UC.  True  False
4. The probable cause standard to be applied in an MP action is whether any reasonable attorney would have thought the UC tenable.  True  False
5. A defense verdict in the UC automatically establishes a lack of probable cuase for an MP case.  True  False
6. Reversal of a plaintiff's verdict on appeal of the UC will not establish the existence of probable cause in an MP case.  True  False
7. Denial of a defendant's motion for summary judgment in the UC normally establishes probable cause to sue.  True  False
8. The element of probable cause to bring the UC has both a factual and a legal component.  True  False
9. Any plaintiff put on notice that a fundamental element of its case is disputed should not proceed without sufficient evidence to support a favorable judgment on that element, or at least information taht such evidence can be obtained.  True  False
10. In an MP case, malice requires a showing that the UC plaintiff ahd hostility or ill will towards the UC defendent.  True  False
11. Malice can be inferred from a lack of probable cause.  True  False
12. A comprehensive general liability (CGL) insurance policy will not cover an MP judgment against an insured because coverage for willful acts is precluded by statute.  True  False
13. A CGL insurance policy cannot cover the defense of an MP case, even if it defines covered <i>personal injury</i> to include MP.  True  False
14. The termination of an action based on the statute of limitations is a finding on the merits and can give rise to an MP cause of action.  True  False
15. The UC defendant must obtain a favorable termination on each UC cause of action to pursue an MP case.  True  False
16. An MP case can never be based on a private arbitration.  True  False
17. The advice of counsel defense waives the attorney-client privileges as to related communications.  True  False
18. The advice of counsel defense has been referred to as an affirmative defense.  True  False
19. The defense of unclean hands does not apply to MP cases.  True  False
20. Only conduct that relates to the actual filing of the underlying case is relevant to the defense of unclean hands.  True  False