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Thursday, January 31, 2013


Jury Instructions

The specific jury instructions for a malicious prosecution case are found at BAJI 7.30 - 7.34. Since BAJI 7.30 gives the elements of malicious prosecution which must be proved in order for the jury to return a verdict, it may be desirable to combine it with BAJI 2.60 which is the general instruction on burden of proof and preponderance of evidence.

Most of plaintiff's special instructions may be gleaned from the Bertero case (supra), which includes a specifically-approved instruction on recoverable damages (13 Cal.3d at 57, fn. 7). Lerner v. Glickenfeld (1960) 187 Cal.App.2d 514, 525, which includes approved jury instructions, states that: (1) If a meritless allegation is joined with a valid one, the plaintiff does not have the burden of showing that his damage was specifically attributable to the malicious prosecution as opposed to the non-malicious prosecution; (2) In determining whether an attorney had probable cause to file a lawsuit, the only facts which are admissible are those which were possessed by the attorney at the time of the filing of the suit and not those learned subsequently; and (3) An attorney cannot escape liability for the malicious prosecution of an unjustified charge by joining it with a justified charge.

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