Law Office Of Paul DePetris
paul@newjerseylemon.com

Malicious Prosecution


Read below to learn more about this topic.

Or, to receive a no cost phone consultation about what the Law Office of Paul DePetris might be able to do for you, call Mr. DePetris at 609-714-2020 or send an email to Mr. DePetris at paul@newjerseylemon.com.

The information in this article is only for New Jersey Law Division, Civil Part cases and not for other New Jersey court cases, such as those in New Jersey Special Civil Court, New Jersey Small Claims Court or New Jersey Chancery Court!!! Do not use this article if you have a New Jersey Special Civil Court, New Jersey Small Claims Court or New Jersey Chancery Court case!!! Also, no website is a substitute for competent advice from a New Jersey lawyer!

Warning – this article does not necessarily include each and every New Jersey court rule that may apply to your New Jersey case! The Law Office of Paul DePetris does not guarantee that the statutes, rules, codes, files or forms on this website are the latest versions of the statutes, rules, codes, files or forms, that they lack typographical errors or that they have not been amended, repealed or superseded by other federal or state law. The New Jersey Statutes, United States Statutes, New Jersey Administrative Code and Federal Code in this database are not annotated. Accordingly, this database may include laws that: (1) never became operable due to unmet conditions; (2) expired; (3) were repealed or amended; (4) were declared void by a court of law; (5) or are otherwise invalid. Further, effective dates of the laws are not necessarily included in the database. Accordingly, you should not rely upon the statutes, rules, codes, files or forms on this website contained in this database for any purpose and before taking any legal measures, you instead should read all applicable federal and state source law and case law and consult with an attorney for any changes in the laws. Be certain to cross reference all applicable rules before preparing, filing or serving any papers!!! For example, Special Civil Part Rules often cross reference other rules – rules that apply to Special Civil Part Cases as well as to other types of civil cases not being heard in Special Civil Part.

NEW JERSEY MALICIOUS PROSECUTION FACTS

WHAT IS A NEW JERSEY MALICIOUS PROSECUTION CASE?
A New Jersey malicious prosecution case is a “tort” case brought by a person claiming that another person or business prosecuted the first person for a falsely claimed civil or criminal act or acts and that the prosecution was therefore malicious – intentionally doing the wrongful act without justification or excuse.

WHAT IS A NEW JERSEY “TORT” CASE
There are two types of New Jersey civil lawsuits in New Jersey – “tort” cases and “contract” cases. A New Jersey “tort” case is a category or type of case other than one based upon a contract. A New Jersey malicious prosecution case is a “tort” case when the New Jersey malicious prosecution plaintiff and New Jersey malicious prosecution defendant involved in the case do not have some type of contract with one another or when the dispute is outside the contract’s terms.

WHO IS THE NEW JERSEY MALICIOUS PROSECUTION PLAINTIFF IN A NEW JERSEY MALICIOUS PROSECUTION CASE?
A “plaintiff” is usually the person or company that files the New Jersey malicious prosecution case.

WHO IS A DEFENDANT IN A NEW JERSEY MALICIOUS PROSECUTION CASE?
A “defendant” is usually the person or company that is sued in a New Jersey malicious prosecution case. But in some New Jersey malicious prosecution lawsuits, a defendant may file a New Jersey malicious prosecution counterclaim that starts the New Jersey malicious prosecution case. If in a New Jersey malicious prosecution lawsuit the New Jersey malicious prosecution defendant files a New Jersey malicious prosecution counterclaim alleging that the main suit constitutes malicious prosecution, it may be that the filing of the counterclaim would be allowed, but its trial withheld until disposition of the original action.

HOW DO I PROVE A NEW JERSEY MALICIOUS PROSECUTION CASE BASED ON A PRIOR CRIMINAL PROCEEDING?
A New Jersey malicious prosecution lawsuit based upon a prior criminal judicial proceeding consists of several elements.

First. The New Jersey malicious prosecution plaintiff must establish the existence of a criminal judicial proceeding against him/her, such as a criminal charge instituted against the New Jersey malicious prosecution plaintiff in a particular court, etc. The general rule is that a New Jersey malicious prosecution lawsuit must be predicated upon the institution of a proceeding before a judicial tribunal. Under certain circumstances, however, a New Jersey malicious prosecution lawsuit may be founded upon the institution of other than a judicial proceeding, at least where such proceedings are adjudicatory in nature and may adversely affect legally protected interests.

Second. The New Jersey malicious prosecution plaintiff must establish that the New Jersey malicious prosecution defendant was responsible for or caused that proceeding to be instituted against him/her, such as by starting the criminal judicial proceeding against the New Jersey malicious prosecution plaintiff by signing a New Jersey criminal complaint, etc.

Third. The New Jersey malicious prosecution plaintiff must establish that the criminal proceeding terminated favorably to him/her or in a manner not adverse to him/her. Such a termination may be based upon a failure of the grand jury to indict, a failure of the magistrate to find a prima facie case, a voluntary withdrawal or abandonment, etc.

Fourth. The New Jersey malicious prosecution plaintiff must establish a lack of reasonable or probable cause for the criminal prosecution. In the typical New Jersey malicious prosecution case, the New Jersey malicious prosecution plaintiff claims that there was a lack of reasonable or probable cause and the New Jersey malicious prosecution defendant claims that there was reasonable or probable cause for instituting the criminal action against the New Jersey malicious prosecution plaintiff. In cases of criminal prosecution reasonable or probable cause exists where there are reasonable grounds for suspicion or belief that an offense was committed, and there are circumstances, sufficiently strong in themselves, to warrant an ordinarily cautious person to believe that the accused committed it. However, conjecture or unfounded suspicions do not constitute reasonable or probable cause. Whether probable cause existed does not depend upon a consideration of what the facts actually were, but rather upon a consideration of what the facts were as they appeared to or were known by or were believed to be by the New Jersey malicious prosecution defendant when he/she instituted the criminal proceeding against the New Jersey malicious prosecution plaintiff. It is not necessary that the New Jersey malicious prosecution defendant have actual cause to prosecute the New Jersey malicious prosecution plaintiff; it was necessary only that he/she has reasonable or probable cause for so doing. If the New Jersey court finds that the New Jersey malicious prosecution defendant had reasonable or probable cause to believe that plaintiff was guilty of the charge it is immaterial that the New Jersey malicious prosecution plaintiff was in fact innocent. Even if the New Jersey court believes that plaintiff was innocent of the crime, he/she cannot recover if the New Jersey court finds that the New Jersey malicious prosecution defendant had reasonable or probable cause to believe that he/she was guilty. Nor can the New Jersey court draw an inference of lack of reasonable or probable cause just because the criminal prosecution ended by (here state how prosecution ended). On the other hand, if the New Jersey court finds that the New Jersey malicious prosecution defendant did not have an honest belief that the New Jersey malicious prosecution plaintiff was guilty and the charges were thereby falsely brought, the New Jersey court must conclude that there was no reasonable or probable cause.

Fifth. The New Jersey malicious prosecution plaintiff must establish that the New Jersey malicious prosecution defendant was activated by a malicious motive in prosecuting the criminal complaint against him/her. The malice contemplated by this element is not malice in the sense that the word is sometimes used. The kind of malice I speak of means the intentional doing of a wrongful or unlawful act without just cause or excuse. Such malice is an intentional act which an ordinarily cautious man would realize that under ordinary circumstances damage would result to one’s person or property, and which does in fact damage another’s person or property. The element of malice may be inferred from a lack of reasonable or probable cause.

Sixth. The last element that must be proved is that the New Jersey malicious prosecution plaintiff suffered damage, as the New Jersey court defines that term, as a proximate result of a malicious prosecution.

THE NEW JERSEY MALICIOUS PROSECUTION PLAINTIFF MUST ESTABLISH THAT THE CRIMINAL PROCEEDING TERMINATED FAVORABLY TO HIM/HER OR IN A MANNER NOT ADVERSE
The weight of authority in this country, including New Jersey, is to the effect that the original proceeding must have terminated before an a New Jersey malicious prosecution case can be instituted. This is a condition precedent to the existence of the cause of action and must be pleaded. Although the rule is generally stated that the action must have terminated favorably to the New Jersey malicious prosecution plaintiff in the malicious prosecution action, all that is necessary is that there be a termination not adverse to the New Jersey malicious prosecution plaintiff coupled with additional proof of malice and lack of probable cause. For example, voluntary withdrawal or abandonment supports cause of action. Failure of Grand Jury to indict is sufficient. Failure of magistrate to find prima facie case is suffi¬cient. A Nolle Prosequi is sufficient – that is, where a defendant declares that they are abandoning their New Jersey criminal case.

IMMUNITY FROM PROSECUTION FOR CERTAIN MERCHANTS FOR NEW JERSEY MALICIOUS PROSECTUON CASES BASED ON A PRIOR NEW JERSEY SHOPLIFTING CHARGE
In New Jersey malicious prosecution cases arising out of shoplifting situations the Legislature provided statutory immunity to merchants who feel the need to reasonably detain individuals whom they have cause to believe are concealing or stealing unpurchased merchandise. This law provides further protection if a merchant causes the arrest of a shoplifter. A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover such merchandise by taking the person into custody, may for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for not more than a reasonable time. Such taking into custody by a law enforcement officer or special officer or merchant shall not render such law enforcement officer, special officer or merchant criminally or civilly liable in any manner or to any extent whatsoever. Any law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the offense of shoplifting as defined in this section. A merchant who causes the arrest of a person for shoplifting, as provided for in this section, shall not be criminally or civilly liable in any manner or to any extent whatsoever where the merchant has probable cause for believing that the person arrested committed the offense of shoplifting.

HOW DO I PROVE A NEW JERSEY MALICIOUS PROSECUTION CASE BASED ON A PRIOR CIVIL PROCEEDING?
An action at law for malicious prosecution based upon a prior civil judicial proceeding consists of several elements.

First. The New Jersey malicious prosecution plaintiff must establish that the New Jersey malicious prosecution defendant instituted or caused to be instituted a New Jersey malicious prosecution lawsuit against him/her and that he/she suffered special grievance thereby – such as whether plaintiff was arrested in connection with said suit or whether his/her property or business was interfered with by the appointment of a receiver, the granting of an injunction, by writ of replevin, by the filing of a lis pendens, etc.

Second. The New Jersey malicious prosecution plaintiff must establish that the civil suit terminated favorably to him/her or in a manner not adverse to him/her, such as by a voluntary withdrawal or abandonment, etc.

Third. The New Jersey malicious prosecution plaintiff must establish lack of reasonable or probable cause for the civil suit. On this subject there is a sharp conflict in the proofs. The New Jersey malicious prosecution plaintiff claims that there was a lack of reasonable or probable cause and the New Jersey malicious prosecution defendant claims that there was reasonable or probable cause for instituting the civil action against the New Jersey malicious prosecution plaintiff. In cases of civil actions reasonable or probable cause exists where there are reasonable grounds for belief that a cause of action exists, supported by circumstances sufficient to warrant an ordinarily prudent person in believing that it exists. Whether probable cause existed does not depend upon a consideration of what the facts actually were, but rather upon a consideration of what the facts were as they appeared to or were known by or were believed to be by the New Jersey malicious prosecution defendant when he/she instituted the civil suit against the New Jersey malicious prosecution plaintiff. It is not necessary that the New Jersey malicious prosecution defendant have actual cause to sue the New Jersey malicious prosecution plaintiff; it was necessary only that he/she have reasonable or probable cause for so doing. If the New Jersey court finds that the New Jersey malicious prosecution defendant had reasonable or probable cause to believe that plaintiff was civilly liable it is immaterial that the New Jersey malicious prosecution plaintiff was in fact not liable. Even if the New Jersey court believes that plaintiff was not civilly liable, he/she cannot recover if the New Jersey court finds that the New Jersey malicious prosecution defendant had reasonable or probable cause to believe that he/she was liable. Nor can the New Jersey court draw an inference of lack of reasonable or probable cause just because the civil suit ended by (here state how the suit ended). On the other hand, if the New Jersey court finds that the New Jersey malicious prosecution defendant did not have an honest belief that the New Jersey malicious prosecution plaintiff was liable and the suit was thereby falsely instituted the New Jersey court must conclude that there was no reasonable or probable cause.

Fourth. The New Jersey malicious prosecution plaintiff must establish that the New Jersey malicious prosecution defendant was activated by a malicious motive in instituting the civil suit against him/her. The malice contemplated by this element is not malice in the sense that the word is sometimes used. The kind of malice I speak of means the intentional doing of a wrongful or unlawful act without just cause or excuse. Such malice is an intentional act which an ordinarily cautious person would realize that under ordinary circumstances damage would result to one’s person or property. The element of malice may be inferred from a lack of reasonable of probable cause.

Fifth. The last element that must be proved is that the New Jersey malicious prosecution plaintiff suffered damage, as the New Jersey court defines that term, as a proximate result of a malicious prosecution.

WHAT IS A “SPECIAL GRIEVANCE” IN A NEW JERSEY MALICIOUS PROSECUTION CASE BASED ON A PRIOR CIVIL PROCEEDING?
A New Jersey malicious prosecution case cannot be maintained for prosecuting a New Jersey malicious prosecution lawsuit unless the New Jersey malicious prosecution defendant in that suit was ‘arrested without cause and deprived of his/her liberty or made to suffer other special grievance different from and superadded to the ordinary expense of a defense. This rule has never been changed or criticized and it still represents the law of New Jersey. A special grievance may consist of disbarment proceedings, of certain license revocation proceedings and where the New Jersey malicious prosecution plaintiff’s property or business has been interfered with by appointment of receiver, granting of injunction or restraining order or filing of lis pendens. Whether the special grievance pleaded is actionable, as a matter of law, is for the court’s determination.

HOW IS “REASONABLE CAUSE” OR “PROBABLE CAUSE” DEFINED IN A NEW JERSEY MALICIOUS PROSECUTION CASE?
Probable cause has been defined as a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinarily prudent person in believing the party is guilty of the offense. It must be more than mere conjecture or unfounded suspicion. Where the facts involving probable cause are not in dispute, the question of probable cause is one of law to be determined by the court. Even an actual determination on the merits against the New Jersey malicious prosecution defendant in the prior proceedings of itself, has no probative force as evidence of want of probable cause. There must be some independent proof of the other elements. On the other hand, a judgment favorable to the person who initiated the proceedings is generally conclusive of probable cause even though subsequently reversed on appeal. The holding over by a magistrate is strong evidence or probable cause, though it is not in itself dispositive of the question. Where the accused is committed or held to bail by a magistrate or indicted by the Grand Jury that constitutes prima facie evidence of probable or reasonable cause. The failure of the Grand Jury to indict is not, however, considered conclusive on the question of probable cause. Proof of malice and want of probable cause may be established by proof circumstantial in nature since usually direct evidence is not obtainable.

HOW IS “MALICE” DEFINED IN A NEW JERSEY MALICIOUS PROSECUTION CASE? Malice in this connection means the intentional commission of a wrongful act without just cause or excuse. Malice in the law means nothing more than the intentional doing of a wrongful act without justification or excuse. Any act which in the ordinary course will infringe upon the rights of another to his/her damage is wrongful, except it be done in exercise of an equal or superior right. Intentionally to do which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person’s property or trade, is actionable if done without just cause or excuse, is what the law calls a malicious wrong. Malice may be inferred from a lack of probable cause.

WHAT IF THE NEW JERSEY MALICIOUS PROSECUTION DEFENDANT CLAIMS THAT THEY WERE ONLY LISTENING TO THEIR NEW JERSEY ATTORNEY WHEN THE NEW JERSEY MALICIOUS PROSECUTION DEFENDANT FILED A NEW JERSEY CRIMINAL COMPLAINT OR NEW JERSEY CIVIL COMPLAINT AGAINST THE NEW JERSEY MALICIOUS PROSECUTION PLAINTIFF?
If the New Jersey malicious prosecution defendant claims that they prosecuted the criminal case after receiving advice from a New Jersey attorney, the New Jersey malicious prosecution defendant has raised the defense of advice of counsel. This is an affirmative defense and the burden of establishing it by a preponderance of the credible evidence is upon the New Jersey malicious prosecution defendant. If the New Jersey court finds that the New Jersey malicious prosecution defendant truthfully communicated to his/her attorney all of the material facts of the case and then relied upon the advice of his/her attorney to institute the criminal prosecution against the New Jersey malicious prosecution plaintiff, the New Jersey malicious prosecution plaintiff cannot recover even if the New Jersey court finds that he/she has proved all the necessary elements to establish malicious prosecution. On the other hand, the advice of an attorney will not protect a party who consults an attorney unless all the material facts within his/her knowledge are fully and truthfully stated to the attorney. If the New Jersey court finds from the evidence that in seeking the advice of counsel the New Jersey malicious prosecution defendant did not make a full, fair and complete disclosure of all material facts within his/her knowledge to his/her counsel, the advice of counsel is no defense to this action. It would appear that the defense of advice of counsel is an affirmative defense and the burden should be upon the New Jersey malicious prosecution defendant in the malicious prosecution action to establish it by a preponderance of the credible evidence. If the New Jersey court determines that the defense has been established it is a complete defense and a bar to the action. The rule requires that a party who requests the advice of counsel must communicate fully all the material facts within his/her knowledge and must not state matters that he/she knows are false.

IS IT EASY TO BRING A SUCCESSFUL NEW JERSEY MALICIOUS PROSECUTION CASE?
New Jersey Courts do not generally look with favor upon New Jersey malicious prosecution case. Therefore, New Jersey courts do not encourage the filing of New Jersey malicious prosecution cases. The reason is embedded deeply in our jurisprudence. Extreme care must be exercised to avoid the creation of a reluctance to seek redress for civil or criminal wrongs for fear of being subjected to a damage suit if the action results adversely. ayflower v. Thor, 15 N.J. Super. 139 (1951), aff’d 9 N.J. 605 (1952); Toft v. Ketchum, 18 N.J. 280 (1955).

WHAT DAMAGES ARE RECOVERABLE IN A NEW JESEY MALICIOUS PROSECTION CASE BASED ON A PRIOR CRIMINAL PROCEEDING?
Damages Generally - Malicious prosecution is a tort action and if the right of action is established, the damages recoverable would be those which proximately flowed from the New Jersey malicious prosecution plaintiff’s wrongdoing. Specifically such damages include:

• Reasonable costs and counsel fees incurred in defending the action maliciously brought.
• Impairment of social and business standing.
• Arrest and detention in jail until released on bail.
• Mental suffering.

New Jersey compensatory damages - those that the New Jersey court finds plaintiff sustained
as a proximate result of the malicious prosecution. New Jersey compensatory damages consist of
injury or loss to reputation or character, time spent in jail or in custody, humiliation, physical and
mental suffering, distress, embarrassment, nervous shock, impairment of social and business
standing, loss of earnings, and reasonable costs and counsel fees incurred in defending the action
maliciously brought. In this connection the word “proximate” means that the malicious prosecution
must have been the cause that produced such injury or loss.

New Jersey punitive damages – The purposes of New Jersey punitive damages are different
from the purposes of New Jersey compensatory damages. New Jersey compensatory damages
are intended to compensate the New Jersey malicious prosecution plaintiff for the actual injury or
loss he/she/it suffered as a result of the New Jersey malicious prosecution defendant’s misconduct.
In contrast, New Jersey punitive damages are intended to punish a wrongdoer and to deter the
wrongdoer from similar wrongful conduct in the future. New Jersey punitive damages are designed
to require the wrongdoer to pay an amount of money that is sufficient to punish New Jersey
malicious prosecution defendant for particular conduct and to deter that party from future
misconduct. New Jersey punitive damages are not to be awarded as a routine matter in every
case; they are to be awarded only in exceptional cases, to punish a party who/which
has acted in an especially egregious or outrageous matter and to discourage that party from
engaging in similar misconduct in the future. Therefore, a New Jersey malicious prosecution
plaintiff is not entitled to New Jersey punitive damages simply because the New Jersey Court
found that the New Jersey malicious prosecution defendant engaged in specific conduct or because the New Jersey Court awarded damages to compensate the New Jersey malicious prosecution plaintiff for his/her/its injury.

The New Jersey court may award New Jersey punitive damages to a New Jersey malicious
prosecution plaintiff only if the New Jersey court finds that the New Jersey malicious prosecution
plaintiff has proved certain additional matters. To support an award of New Jersey punitive
damages, the New Jersey court must find that the New Jersey malicious prosecution plaintiff has
proved, by clear and convincing evidence, that the injury, loss, or harm suffered by the New Jersey
malicious prosecution plaintiff was the result of the New Jersey malicious prosecution
defendant’s acts or omissions and that either (1) the New Jersey malicious prosecution
defendant’s conduct was malicious or (2) the New Jersey malicious prosecution defendant acted in
wanton and willful disregard of (plaintiff’s) rights. Malicious conduct is intentional wrongdoing in the
sense of an evil-minded act. Willful or wanton conduct is a deliberate act or omission with
knowledge of a high degree of probability of harm to another who foreseeably might be harmed by
that act or omission and reckless indifference to the consequence of the act or omission. The
standard of “clear and convincing evidence”, mentioned above, means that evidence which
leaves no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence. This is different – and less – than proof beyond a reasonable doubt. This is also
different – and more - than a preponderance of evidence to support an award of New Jersey
punitive damages. In determining whether to award New Jersey punitive damages, consider all
relevant evidence, including but not limited to the following: (1) the likelihood, at the relevant time,
that serious harm would arise from the New Jersey malicious prosecution defendant’s conduct; (2)
the New Jersey malicious prosecution defendant’s awareness or reckless disregard of the
likelihood that such serious harm would arise from the New Jersey malicious prosecution
defendant’s conduct; (3) consider the conduct of the New Jersey malicious prosecution defendant
upon learning that his/her/its initial conduct would likely cause harm; and (4) consider the duration
of the conduct or any concealment of that conduct by the New Jersey malicious prosecution
defendant. But note that the “malice” necessary to support a claim for malicious prosecution is very different than the “malice” necessary to justify an award of New Jersey punitive damages. To find in favor a New Jersey malicious prosecution plaintiff, the New Jersey court must find that the New Jersey malicious prosecution defendant intentionally committed a wrongful or unlawful act without any justification or excuse. The New Jersey court’s finding of that kind of intent on the part of the New Jersey malicious prosecution defendant does not, without more, justify an award of punitive damages to the New Jersey malicious prosecution plaintiff. However, the New Jersey court may award New Jersey punitive damages to the New Jersey malicious prosecution plaintiff if the New Jersey Court does find that the New Jersey malicious prosecution defendant initiated the prosecution maliciously or in willful or wanton disregard of the New Jersey malicious prosecution plaintiff’s rights.

WHAT DAMAGES ARE RECOVERABLE IN A NEW JESEY MALICIOUS PROSECTION CASE BASED ON A PRIOR CIVIL PROCEEDING?
New Jersey compensatory damages - New Jersey compensatory damages are
those which the New Jersey court finds that plaintiff sustained as a
proximate result of the New Jersey malicious prosecution defendant’s
wrongdoing. In cases in which an arrest was made in connection with a
civil suit, New Jersey compensatory damages consist of injury and loss to
reputation, fame or character, time spent in jail or custody, humiliation,
physical and mental suffering, distress, embarrassment, nervous shock,
impairment of social and business standing, loss of earnings, and
reasonable costs and counsel fees incurred in defending the action
maliciously brought. In cases where no arrest but other special grievance
is shown, damages would include business losses and the like, and
reasonable costs and counsel fees. In this connection the word “proximate” means that
the malicious prosecution must have been the efficient, producing cause of such injury or loss.

New Jersey punitive damages – The purposes of New Jersey punitive damages are different
from the purposes of New Jersey compensatory damages. New Jersey compensatory damages
are intended to compensate the New Jersey malicious prosecution plaintiff for the actual injury or
loss he/she/it suffered as a result of the New Jersey malicious prosecution defendant’s misconduct.
In contrast, New Jersey punitive damages are intended to punish a wrongdoer and to deter the
wrongdoer from similar wrongful conduct in the future. New Jersey punitive damages are designed
to require the wrongdoer to pay an amount of money that is sufficient to punish New Jersey
malicious prosecution defendant for particular conduct and to deter that party from future
misconduct. New Jersey punitive damages are not to be awarded as a routine matter in every
case; they are to be awarded only in exceptional cases, to punish a party who/which
has acted in an especially egregious or outrageous matter and to discourage that party from
engaging in similar misconduct in the future. Therefore, a New Jersey malicious prosecution
plaintiff is not entitled to New Jersey punitive damages simply because the New Jersey Court found that the New Jersey malicious prosecution defendant engaged in specific conduct or because the New Jersey Court awarded damages to compensate the New Jersey malicious prosecution plaintiff for his/her/its injury.

The New Jersey court may award New Jersey punitive damages to a New Jersey malicious
prosecution plaintiff only if the New Jersey court finds that the New Jersey malicious prosecution
plaintiff has proved certain additional matters. To support an award of New Jersey punitive
damages, the New Jersey court must find that the New Jersey malicious prosecution plaintiff has
proved, by clear and convincing evidence, that the injury, loss, or harm suffered by the New Jersey
malicious prosecution plaintiff was the result of the New Jersey malicious prosecution
defendant’s acts or omissions and that either (1) the New Jersey malicious prosecution
defendant’s conduct was malicious or (2) the New Jersey malicious prosecution defendant acted in
wanton and willful disregard of (plaintiff’s) rights. Malicious conduct is intentional wrongdoing in the
sense of an evil-minded act. Willful or wanton conduct is a deliberate act or omission with
knowledge of a high degree of probability of harm to another who foreseeably might be harmed by
that act or omission and reckless indifference to the consequence of the act or omission. The
standard of “clear and convincing evidence”, mentioned above, means that evidence which
leaves no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence. This is different – and less – than proof beyond a reasonable doubt. This is also
different – and more - than a preponderance of evidence to support an award of New Jersey
punitive damages. In determining whether to award New Jersey punitive damages, consider all
relevant evidence, including but not limited to the following: (1) the likelihood, at the relevant time,
that serious harm would arise from the New Jersey malicious prosecution defendant’s conduct; (2)
the New Jersey malicious prosecution defendant’s awareness or reckless disregard of the
likelihood that such serious harm would arise from the New Jersey malicious prosecution
defendant’s conduct; (3) consider the conduct of the New Jersey malicious prosecution defendant
upon learning that his/her/its initial conduct would likely cause harm; and (4) consider the duration
of the conduct or any concealment of that conduct by the New Jersey malicious prosecution
defendant. But note that the “malice” necessary to support a claim for malicious prosecution is very different than the “malice” necessary to justify an award of New Jersey punitive damages. To find in favor a New Jersey malicious prosecution plaintiff, the New Jersey court must find that the New Jersey malicious prosecution defendant intentionally committed a wrongful or unlawful act without any justification or excuse. The New Jersey court’s finding of that kind of intent on the part of the New Jersey malicious prosecution defendant does not, without more, justify an award of punitive damages to the New Jersey malicious prosecution plaintiff. However, the New Jersey court may award New Jersey punitive damages to the New Jersey malicious prosecution plaintiff if the New Jersey Court does find that the New Jersey malicious prosecution defendant initiated the prosecution maliciously or in willful or wanton disregard of the New Jersey malicious prosecution plaintiff’s rights.

ARE NEW JERSEY ATTORNEY FEE AWARDS AVAILABLE IN NEW JERSEY MALICIOUS PROSECUTION CASES?
There are two types of civil cases in New Jersey – “tort” cases and “contract” cases. A New Jersey “tort” case is a category or type of case other than one based upon a contract. A New Jersey malicious prosecution case is a “tort” case when the New Jersey malicious prosecution plaintiff and New Jersey malicious prosecution defendant involved in the case do not have some type of contract with one another.

In certain types of New Jersey tort cases, New Jersey attorney fee awards are available. Because there are so many exceptions and technicalities involved in New Jersey attorney’s fee awards in New Jersey tort cases, before deciding whether your New Jersey tort case may allow you to win a New Jersey attorney’s fee award, you should consult with a New Jersey attorney. The American Rule does not prohibit a New Jersey attorney’s fee award where they are incurred as an element of damages in a particular cause of action. For example, in a New Jersey malicious prosecution case, a party that is found to be a victim of a New Jersey malicious prosecution may recover their attorney’s fees from the wrongdoer.

Also, if a party to a New Jersey lawsuit must pay New Jersey attorneys' fees in litigation with a third party, those New Jersey attorney’s fees that are due to the New Jersey litigation with the third party may be recovered in the appropriate New Jersey tort case. For example, if a New Jersey plaintiff has been forced because of the wrongful conduct of a tortfeasor to institute litigation against a third party, the New Jersey plaintiff can recover the New Jersey attorney’s fees incurred in that litigation from the tortfeasor.

The following is an example of this type of recovery of New Jersey attorney’s fees. A New Jersey plaintiff successfully sued a New Jersey defendant for egregious malpractice. The New Jersey plaintiff recovered a New Jersey judgment, including both compensatory and New Jersey punitive damages, and sought to satisfy the judgment out of the New Jersey defendant's assets. But the New Jersey defendant divested himself of all assets other than those that could not be used to satisfy the New Jersey judgment. The New Jersey plaintiff filed suit against the New Jersey defendant, his wife, and his three adult sons, alleging that the New Jersey defendant fraudulently conveyed the assets to those family members to avoid satisfying the New Jersey plaintiff's judgment. The New Jersey plaintiff requested a New Jersey attorney fee award. The New Jersey court first noted the general rule that New Jersey parties bear the burden of paying their own New Jersey attorney fees. The New Jersey court then noted, however, that if the commission of a tort proximately causes litigation with parties other than the tortfeasor, the New Jersey plaintiff is entitled to recover damages measured by the expense of that New Jersey litigation with third parties. Applying that rule, the New Jersey court concluded that although the New Jersey plaintiff may not recover his New Jersey litigation expenses for litigating with the New Jersey defendant that allegedly committed the fraudulent transfers to establish that his transfers were fraudulent, the New Jersey plaintiff was entitled to a New Jersey attorney fee award for reasonable New Jersey attorneys' fees expended in litigating with third parties, including the other New Jersey defendants, to void or set aside the transfers. Accordingly, the New Jersey plaintiff was not entitled to New Jersey attorneys' fees for the costs incurred in litigating directly against the New Jersey defendant, but he was entitled to New Jersey attorneys' fees for the costs incurred in litigating the validity of the transfers against the New Jersey defendant's wife and sons.

Another example of a New Jersey plaintiff being able to win a New Jersey attorney fee award occurred in a New Jersey trust case. In that New Jersey case and based upon its unique facts, the New Jersey court held that when an executor or trustee reaps a substantial economic or financial benefit from undue influence, the fiduciary may face responsibility for a New Jersey attorney fee award incurred by the New Jersey plaintiffs and New Jersey third parties in litigation to restore the estate’s assets to what they would have been had the undue influence not occurred.

HOW IS A NEW JERESY ABUSE OF PROCESS CASE DIFFERENT FROM A NEW JERSEY MALICIOUS PROSECUTION CASE?
An action for malicious abuse of process is distinguished from an action for malicious use of process in that the action for abuse of process lies for the improper, unwarranted and perverted use of process after it has been issued while that for the malicious use of it lies for causing process to issue maliciously and without reasonable or probable cause. The distinction between a New Jersey malicious use lawsuit and New Jersey malicious abuse of process lawsuit is that the malicious use is the employment of process for its ostensible purpose, although without reasonable or probable cause, whereas the malicious abuse is the employment of a process in a manner not contemplated by law. Another fundamental distinction is that in the case of malicious use it is necessary to allege that the action in which the process was used has terminated favorably to the New Jersey abuse of process plaintiff whereas in the case of the malicious abuse no such allegation is necessary.

NEED HELP WITH YOUR NEW JERSEY CASE?
Handling your New Jersey case wrong from the beginning may only cost you more money and time in the end!! Do it right the first time by seeking legal advice from a competent New Jersey lawyer!
Let the Law Office of Paul DePetris help you with your New Jersey case. Not all New Jersey cases require you to pay expensive legal fees to get legal help.

WHY SHOULD NEW JERSEY PRO SE PLAINTIFFS AND NEW JERSEY PRO SE DEFENDANTS SEEK HELP FROM A NEW JERSEY LAWYER?
Handling your New Jersey case wrong from the beginning may only cost you more money and time in the end!! Do it right the first time by seeking legal advice from a competent New Jersey lawyer!
Many New Jersey pro se plaintiffs and New Jersey pro se defendants make the mistake of not consulting a New Jersey lawyer before filing New Jersey Court papers only to later learn that the New Jersey pro se plaintiffs and New Jersey pro se defendants made serious mistakes that could cause them to lose their New Jersey case. Let the Law Office of Paul DePetris help you with your New Jersey case.

CAN I RELY ON NEW JERSEY COURT PERSONNEL FOR LEGAL ADVICE?
New Jersey Court employees cannot give you “free” legal advice and a New Jersey Court judge may refuse to let you claim that you were right in taking an action (or in deciding not to take action) because you relied on advice from such employees. Most New Jersey Court employees are not trained New Jersey attorneys and therefore, they may not know what advice to give you. Working at the New Jersey Court as a non-judge is not the same as practicing law.

CAN I RELY ON NEW JERSEY COURT FORMS PROVIDED BY THE NEW JERSEY COURT?
The New Jersey Court usually provides certain types of New Jersey Court legal forms to the public and those forms are often very helpful. However, beware relying on New Jersey Court forms provided by the New Jersey Court – the New Jersey Court forms are often deceptively simple, while New Jersey cases often are much more complex than they first appear to be. There is simply no substitute for a competent New Jersey attorney licensed to practice law in New Jersey who has experience handling New Jersey cases. New Jersey Court forms don’t talk and New Jersey Court forms and their directions rarely, if ever, cover every possible situation, set of facts or legal issue that may arise in a New Jersey case. Each New Jersey case has its own particular legal issues and therefore, its own challenges. If you can afford a competent New Jersey attorney, it is best to have the New Jersey attorney prepare your New Jersey Court paperwork for you.

CAN I HANDLE A NEW JERSEY CASE MYSELF?
Many New Jersey pro se plaintiffs and New Jersey pro se defendants can and do successfully handle New Jersey cases, from filing the first paperwork to the collection of a New Jersey Court judgment. However, many other New Jersey pro se plaintiffs and New Jersey pro se defendants also make mistakes that lead to the dismissal of their New Jersey cases or that result in the entry of a New Jersey Court money judgment against them. The greater the money at stake, the greater the reason to consider using the services of a competent attorney licensed to practice law in New Jersey to handle part or all of the New Jersey case. The following are reasons to use an attorney to handle part or all of your New Jersey case:
• New Jersey Court fees often change
• New Jersey Court rules often change
• New Jersey Court employees cannot give you “free” legal advice and a New Jersey Court judge may refuse to let you claim that you were right in taking an action (or in deciding not to take action) because you relied on advice from such employees
• New Jersey Court forms available on websites may not cover every situation you may face in Court
• each New Jersey case has its own particular legal issues and therefore, its own challenges
• it is very common for New Jersey pro se plaintiffs and New Jersey pro se defendants to file inadequate or incorrect New Jersey Court complaints that result in the New Jersey Court complaints or answers to New Jersey Court complaints being rejected by the New Jersey Court or being dismissed by the New Jersey Court after filing and before or after trial because of procedural deficiencies.
• it is not uncommon for judges to get very frustrated by an unrepresented party’s lack of preparation or ignorance of the facts or law of the New Jersey case.
• a Court has the power to punish unprepared New Jersey plaintiffs and New Jersey defendants, such as by throwing their New Jersey case out of Court or limiting what they can present at the New Jersey Court trial.
• New Jersey has many published cases, laws, regulations, Court rules and rules of evidence that can be very tricky to understand and that can be used to prevent you from doing much of what you want to do at the New Jersey Court trial.
• it is very common for Courts to refuse to allow a party to use or refer to documents or items at the New Jersey Court trial that the person themselves never prepared. Often New Jersey plaintiffs and New Jersey defendants stumble into New Jersey Court with a video, photograph, bill or affidavit or other form of written statement, thinking they are going to use it as proof that they lost money or that they are not responsible for someone else’s damages, only to have a New Jersey Court judge tell the New Jersey plaintiffs and New Jersey defendants that it is not going to even consider such items or documents.
• without the proper preparation, items and documents may never be considered by the New Jersey Court. Also, if there are any legal issues to be dealt with at the New Jersey Court trial, you must be prepared to argue them, which may require you to refer to Court rules, evidence rules, laws, regulations or published cases.
• you cannot show up at the New Jersey Court expecting the judge hearing your New Jersey case to explain Court rules, evidence rules, Court procedure or the details of the law that applies to your New Jersey case. The judge hearing your New Jersey case is not permitted to give you legal advice.

It is important to remember that even if you have an attorney, you could lose your New Jersey case. Hiring an attorney to handle part or all of your New Jersey case does not guarantee your success. However, it may provide what is needed to win your New Jersey case or to avoid certain mistakes.

DOES THE LAW OFFICE OF PAUL DEPETRIS HAVE EXPERIENCE HANDLING NEW JERSEY CASES?
Yes. Paul DePetris has performed the following tasks:
• handled New Jersey cases for plaintiffs and defendants across New Jersey, from Bergen County New Jersey to Cumberland County New Jersey, including representations of individuals, small businesses and large corporations.
• settled New Jersey cases for plaintiffs and defendants across New Jersey.
• reviewed many New Jersey Court settlement agreements.
• enforced many New Jersey Court settlement agreements.
• provided New Jersey pro se plaintiffs and New Jersey pro se defendants with New Jersey Court legal advice and prepared New Jersey Court legal forms
• prepared and filed many New Jersey Court complaints
• tried New Jersey Court jury trials
• mediated many New Jersey cases
• argued New Jersey Court motions
• handled New Jersey Court proof hearings
• handled New Jersey Court post judgment collection proceedings

Mr. DePetris has appeared before the Superior Court of New Jersey in the following counties:
• Atlantic County New Jersey Court
• Bergen County New Jersey Court
• Burlington County New Jersey Court
• Camden County New Jersey Court
• Cape May County New Jersey Court
• Cumberland County New Jersey Court
• Essex County New Jersey Court
• Gloucester County New Jersey Court
• Hudson County New Jersey Court
• Mercer County New Jersey Court
• Middlesex County New Jersey Court
• Monmouth County New Jersey Court
• Morris County New Jersey Court
• Ocean County New Jersey Court
• Passaic County New Jersey Court
• Salem County New Jersey Court
• Somerset County New Jersey Court
• Sussex County New Jersey Court
• Union County New Jersey Court
• Warren County New Jersey Court

IN WHAT NEW JERSEY COUNTIES WILL THE LAW OFFICE OF PAUL DEPETRIS HANDLE NEW JERSEY CASES?
The Law Office of Paul DePetris offers to handle and help individuals and businesses with New Jersey Court Claims cases in North, Central and Southern New Jersey, including cases in the following New Jersey counties:
• Atlantic County New Jersey Court
• Bergen County New Jersey Court
• Burlington County New Jersey Court
• Camden County New Jersey Court
• Cape May County New Jersey Court
• Cumberland County New Jersey Court
• Essex County New Jersey Court
• Gloucester County New Jersey Court
• Hudson County New Jersey Court
• Mercer County New Jersey Court
• Middlesex County New Jersey Court
• Monmouth County New Jersey Court
• Morris County New Jersey Court
• Ocean County New Jersey Court
• Passaic County New Jersey Court
• Salem County New Jersey Court
• Somerset County New Jersey Court
• Sussex County New Jersey Court
• Union County New Jersey Court
• Warren County New Jersey Court

WHAT IF I DON’T HAVE ENOUGH MONEY TO HIRE AN ATTORNEY TO HANDLE MY NEW JERSEY CASE FROM BEGINNING TO END?
In many situations, the Law Office of Paul DePetris offers alternatives to handling New Jersey cases for an hourly fee, such as by offering to handle your New Jersey case up to trial for a fixed fee or to help you handle your New Jersey case by yourself. Such flexible methods may allow you to keep the amount legal fees you spend on your New Jersey case to a fixed sum, while providing you the help you need to handle your New Jersey case. For a no obligation phone consultation about what the Firm might be able to do for you, call Mr. DePetris at 609-714-2020 or send an email to Mr. DePetris.

Website Builder