Abuse of Process

The legal term abuse of process refers to the act of using the legal process – during a legal proceeding – to harass another party to the suit, to intentionally incur costs with the intent that the other party will be ordered to pay those costs, or to delay the court action. Abuse of process is a tort that may be claimed in a subsequent legal proceeding, or argued during the current case. Additionally, abuse of process may occur in both civil and criminal matters. To explore this concept, consider the following abuse of process definition.

Definition of Process


  1. A series of legal actions within the court’s course of procedure.
  2. The summons, writ, or mandate by which an issue is brought before the court.


1275-1325       Middle English

What is Abuse of Process

Using the legal process – or court procedures – to accomplish an improper or unlawful purpose is considered to be abuse of process. Such abuse stems from unnecessary or improper motions, or causing the court to issue a warrant, summons, or other mandate. Abuse of process may also include serving legal documents that were never actually filed with the court, for the purpose of intimidating someone.

For example:

Andrea purchased a living room sofa set from a local furniture store. A few weeks later she decides she doesn’t like it, and wants to return the set for a full refund. The furniture store refuses to accept the return, as there does not appear to be a manufacturer’s defect, which makes Andrea angry. She makes a scene at the store, loudly proclaiming that the establishment is dishonest, and irately tells the manager that he’ll be without a job by the time she gets through with him.

Andrea wants her money back so she can buy a different furniture set, and going through the small claims process will take longer than she wants to wait. She obtains the necessary documents to file a small claims lawsuit against the store, fills them out, and has a process server deliver them to the store manager, even though they were never filed with the court. In this example, abuse of process is evident in Andrea’s fraudulent service of meaningless documents for the purpose of scaring the establishment into refunding her money.

Abuse of Process vs. Malicious Prosecution

Abuse of process and malicious prosecution are very similar, in that they both seek to cause some difficulty to a party, to harass or intimidate a party, or to delay some proceeding. These issues are, however, different from one another, and proving them in court requires different elements. Abuse of process involves creating additional processes during the course of active litigation (meaning during a lawsuit or criminal case that is already in process). Malicious prosecution, on the other hand, involves initiating a civil lawsuit or criminal claim without good reason, or probable cause.

Abuse of Process in Criminal Proceedings

There are many opportunities for the legal process to be sidetracked in criminal cases. Not only might depositions and subpoenas be issued for nefarious purposes, but the process extends back to the beginning, with law enforcement investigations, probable cause, and arrests. While the specifics of abuse of process claims varies by jurisdiction, most do not require that the entire proceeding – meaning the entire lawsuit or criminal proceeding – be baseless in order for a party to claim abuse of process.

Such a claim may be based on a procedural wrongdoing, in the use of such tools as discovery, or the act of obtaining information and evidence without probable cause. The courts generally are loathe to dismiss an entire claim based on such misconduct, but may rule on certain aspects, or disallow certain evidence. The reason for so narrowly defining malicious abuse of process is to protect the people’s right of access to the court system.

As such, the tort of abuse of process is considered to be a perversion of the legal process, after it has begun, in using a process for a purpose other than it is intended. Initiating criminal proceedings without probable cause to believe the defendant might be found guilty, is generally considered sufficient evidence for an abuse of process claim. Such an abuse of the system might also be considered malicious prosecution.

Proving that the prosecution did not have probable cause might be tricky, as it must be shown that it did not have a reasonable belief that the allegations can be proven true.

Proving Abuse of Process

Proving abuse of process requires that certain elements be met. These include:

  1. There is an ulterior motive or purpose to the process
  2. The process, or some portion of it, is not proper in the regular course of the proceedings

What is not required to be proven in an abuse of process claim includes:

  • There was malice in pursuing the abused process
  • There was no probable cause for initiating or procuring the process
  • The case was resolved in favor of the party making an abuse of process claim

Example of Abuse of Process in Deposition

Dan has filed a civil lawsuit against Megacorp, claiming the company stole his research, then fired him. During the course of the lawsuit, Megacorp summons Dan for a deposition. During the deposition, the corporation’s lawyer not only asks questions directly related to the case, but edges into obtaining quite a bit of personal and business information. Megacorp wants this information in order to cause problems in Dan’s personal and professional life, in an attempt to get him to withdraw his claim.

In this example of abuse of process, Megacorp has abused the right to use depositions to gain important information and evidence. Dan may refuse to answer any questions that are improper, though if the corporation does gain information that is not relevant – with an ulterior motive – Dan may have a cause of action to sue the company.

Abuse of Process Example in Personal Injury Case

In 1997, Jamie and Travis Durham were involved in an accident with an uninsured motorist. Both of them were seriously injured, and relied on their insurance policy, which had uninsured motorist coverage, to pick up the tab for their medical bills. Almost immediately after the Durhams advised their insurance company, Allstate, that they would be making a claim under that policy, a disagreement began about how much that policy would actually pay. The issue was assigned to arbitration.

The arbitrators, after hearing the case much the same as it would have been presented in court, awarded the Durhams $45,000, as well as all of the fees and costs for the arbitration. The award was more than $31,000 higher than what Allstate had offered in settlement.

While Allstate did not file a court action to contest the arbitrator’s award, the Durhams later claimed that the company’s attorney, Suzanne Guest, had engaged in abuse of process during the investigation prior to arbitration. The couple, in a bad faith civil lawsuit filed against Allstate, Suzanne Guest, and others, alleged that Guest had issued subpoenas maliciously, in order to obtain private information about the Durhams’ medical and records. The malicious subpoenas were, in fact, issued in violation of a protective order that had been issued by the arbitrators.

The Durhams claimed that Allstate, through its legal representative, delved into their personal lives for the purpose of destroying their reputations, and to cause them to lose their jobs. The defendants’ actions resulted in humiliation and a great deal of emotional distress. They believed that this was done in retaliation for the couple refusing Allstate’s settlement offer, which was made prior to arbitration.

The defendants argued that an abuse of process claim could not be made on a case that had not entered the court system. In this case, arbitration is a formal method of dispute resolution, which is heard by private arbitrators, not a judge. The trial court dismissed the Durhams’ claims, and the appellate court agreed. The New Mexico Supreme Court agreed to hear their case, on only the point of whether their claim that Guest had issued a subpoena for an illegitimate purpose was enough to claim malicious abuse of process.

The Supreme Court found that arbitration is indeed a judicial proceeding in such a matter, and restated the requirements to prove malicious abuse of process:

“(1) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (2) a primary motive in the use of process to accomplish an illegitimate end; and (3) damages.”

The Court reversed the lower courts’ decisions, and remanded the case – sent it back to the trial court – with instructions to hear the matter of abuse of process.

Related Legal Terms and Issues

  • Alleged – Declared or asserted before a court, or other legal proceeding, under oath.
  • Bad Faith – Fraudulent deception; malicious or intentional failure to perform a contractual obligation or other duty.
  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Discovery – The pre-trial efforts of each party to obtain information and evidence.
  • Emotional Distress – A negative emotional reaction, such as anguish, humiliation, or grief, resulting from the conduct of another individual. Also referred to as “mental anguish.”
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.