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Thursday, January 31, 2013


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By John P. Blumberg

This article appeared in the "Los Angeles Daily Journal."

The former defendant who prevailed in an unjustified lawsuit is now plaintiff in a malicious prosecution lawsuit, and the target is the former plaintiff's attorney. This article discusses techniques and strategies which may be useful in the actual trial of the case.

The elements of a malicious prosecution case are (1) that the defendant filed and/or prosecuted the underlying civil action; (2) a favorable termination of the prior case, in which the innocence of the former defendant was established; (3) the absence of probable cause, meaning that no reasonable attorney would have considered it to be tenable; (4) malice, which can be implied from a conscious disregard for the consequences, from a lack of probable cause, and from inadequate investigation and research, and (5) damages.
Regardless of the subject matter of the underlying lawsuit, the theme will generally be that the lawyer-defendant has violated a sacred public trust which bestows the power to file and prosecute legal actions. Counsel for plaintiff will want to show that defendant is a threat to the judicial system and deserving of the indignation and contempt of decent society.

The defense will usually attempt to show that the attorney-defendant was properly engaged in the highest calling of the profession, i.e., to represent his client zealously. Defense counsel will argue that his client acted "reasonably" under the circumstances.

The Trial Brief

The defense will usually attempt to show that the attorney-defendant was properly engaged in the highest calling of the profession, i.e., to represent his client zealously. Defense counsel will argue that his client acted "reasonably" under the circumstances.

Motions in Limine

Plaintiff in a malicious prosecution action must prove that the prior judicial proceeding terminated in his favor, and it is essential that the defendant not be given the opportunity to re-try that case. That issue must remain closed. Therefore, it is necessary to prevent the defense from questioning the findings which form the foundation of the malicious prosecution case. The trial judge must be persuaded that principles similar to res judicata prevent the re-litigation of the prior case. [See, e.g., Covell v. Superior Court (1984) 159 Cal.App.3d 39, 43, fn.3]. A motion in limine will prevent the defense from introducing "new" evidence which may not have been presented at the former trial.

Jury Selection

Ironically, jurors whom plaintiffs usually avoid (e.g., insurance adjusters, law enforcement types and doctors' wives) may be the most favorable to plaintiff in a malicious prosecution case. Insurance adjusters have a built-in bias against attorneys who present unfounded or "nuisance" cases for settlement. Law enforcement types will be hard on the lawyer who "broke the rules." Persons who are generally critical of the litigation process will be inclined to punish an errant lawyer.

The plaintiff's lawyer should ask each prospective juror such questions as, "Do you agree that a lawyer should be held accountable for harm that he causes by his wrongdoing?" "Do you believe that a lawyer may do whatever he wants in representing a client, regardless of whether it is right or wrong, reasonable or unreasonable?" "Are you willing to judge the conduct of this lawyer and decide whether his conduct went beyond what the law allows him to do?" 

Presenting Plaintiff's Case

Since the re-litigation of the former lawsuit will be prohibited, the favorable termination of that case is the starting point of the malicious prosecution case. Therefore, it is suggested that, before plaintiff's first witness is called, plaintiff should offer, as Exhibit "1", the judgment in the underlying action. If a statement of decision was made, that document should also be offered.

The witnesses for plaintiff should establish plaintiff's obvious innocence of the defendant's accusations to fuel the jury's outrage. The plaintiff's attorney needs to convey the clear implication the attorney-defendant was acting with a knowing and conscious disregard for the facts and the rights of the plaintiff. The greater the amount of evidence favorable to the plaintiff which was available to the attorney-defendant (whether he discovered it or not), then the greater the inference that the proceedings were initiated for the improper purpose of forcing a settlement which had no relation to the merits of the claim. [Albertson v. Raboff (1956) 46 Cal.2d 375.]

Expert Witnesses

In a malicious prosecution case against an attorney, the test for probable cause is whether the case was tenable, meaning "objectively reasonable." In other words, if no reasonable attorney would have believed that there was a legitimate basis for prosecuting the lawsuit, there was no probable cause. Although "probable cause" is a pure question of law, whether it existed is a pure question of fact. That question of fact, however, is to be determined solely by the court. "It is thoroughly established that experts may not give opinions on matters which are essentially within the province of the court to decide. [Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 884.] Accordingly, no experts may testify on the probable cause issue.

No court has ruled, however, that experts may not testify on the issue of malice. In fact, in Sheldon Appel Co., supra, the Supreme Court stated that "the extent of a defendant attorney's investigation and research may be relevant to the further question of whether or not the attorney acted with malice." [Id. at p. 883.] Accordingly, an attorney's failure to conduct an investigation of the facts and law reasonable under the circumstances in a case which turns out to lack probable cause may be enough in appropriate circumstances to establish malice. Therefore, counsel for plaintiff should offer expert testimony by an attorney who can explain what research and investigation "reasonable" attorneys would have done, and why the given conduct was improper, unethical or unreasonable. The expert should also be used to educate the jury on the subject of such matters as settlement, public policy and improper motives for settlement. From the defense prospective, an expert witness will be necessary to counter the plaintiff's arguments.

Proving Damages

The easiest item of compensatory damages to prove is the amount of attorney's fees which the plaintiff paid in successfully defending the underlying claim. It may be effective to ask the plaintiff on direct examination whether the payment of the fees resulted in some form of deprivation or humiliation. For example, "I had to borrow the money."

Plaintiff is entitled to be compensated for any detriment or harm to his reputation, including any impairment of his social and business standing. Newspaper articles and pictures are persuasive proof of the widespread impact of the defamatory allegations. [Blair v. Williams (1952) 109 Cal.App.2d 516.] Loss of reputation, however, is difficult to prove since friends and acquaintances of the plaintiff will be reluctant to testify that they disassociated themselves as a result of the accusations in the underlying lawsuit. In fact, the defense could very well use these friends and associates against the plaintiff by having them testify that they never believed the allegations, and their relationship with plaintiff did not change as a result.

Emotional and mental suffering will usually comprise a large element of damages. In Bertero v. Natn'l General Corp. (1974) 13 Cal.3d 43, 58, fn. 7, the Supreme Court said that the plaintiff may recover damages for "any mental suffering or emotional distress suffered by him". The word "any" is the key because it permits recovery based upon the plaintiff's particular disposition and sensitivity [Sandoval v. So. Calif. Enterprises, Inc. (1950) 98 Cal.App.2d 240] and not based upon an objective standard.

Unless there is sufficient evidence to support it, a separate cause of action for the infliction of emotional distress should not be presented at trial. The "infliction of emotional distress" theory requires an objective standard which must be used to measure the emotional distress. Furthermore, the quantum of proof required to prove emotional distress is much greater (see BAJI 12.74).


For summation, it is necessary to build on the themes which were introduced during voir dire and to call in the "commitments" which were pledged earlier by the jurors. Among these "commitments" will be the obligation to judge right from wrong, moral from immoral and justice from injustice.

As in other cases, a central theme should be "the jury as the voice of the community". By casting the jurors in their role as "guardians of justice", the power to regulate the litigation process is placed in their hands. The jury can be told: "If you want to send a message to the lawyers in our society that this wrongful use of our system of justice will not be tolerated, tell them with your verdict. You have the power to set the standard of conduct for lawyers in our society." This is the springboard into the argument of the deterrent value of punitive and exemplary damages.

Special Jury Interrogatories

Although the issue of whether the attorney-defendant acted with probable cause is exclusively for the court, there are alternate procedures for submitting the issues to the jury. The jury may either return a special verdict on factual questions, permitting the court then to state whether or not probable cause existed, or the court may instruct the jury to render their verdict based upon whether specified facts (constituting probable cause) existed.

If special interrogatories are used, there may be a benefit to the plaintiff, because it requires the jury to examine "every step" of the prosecution [Lujan v. Gordon (1977) 70 Cal.App.3d 260, 263-264.] BAJI 7.30 instructs that the malicious prosecution can be the commencement and/or the maintenance of the action. Since the jury must explore the component parts of the underlying case, a finding that exculpatory facts were later discovered will support a finding that there was no probable cause, despite the fact that the attorney-defendant acted properly at an earlier time.

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.


The common perception the "litigation explosion" is caused by the filing of civil lawsuits may work in plaintiff's favor. A verdict for plaintiff is more likely if the jurors believe that their verdict will help put an end to improper use of the courts.

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