Malicious Prosecution: Bad News
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
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