abuse of process – improper, intentional, tortious use of civil or criminal process to obtain a result that is either unlawful or beyond the purpose for which such process was designed

     This page is continued from Criminal Law Self-Help >>>> Legal Terms pertaining to Assessing Varying Degrees of Crimes >>>> Malice >>>> Malicious Prosecution:


abuse of process:

1. The improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope. — aka abuse of legal process; malicious abuse of process; malicious abuse of legal process; wrongful process; wrongful process of law. [1]

1. The malicious perversion of a regularly issued civil or criminal process, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby, and for which perversion an action will lie to recover the pecuniary loss sustained. 1 Am J2d Abuse P § 1.

Malicious use of process is the employment of process for its ostensible purpose, but without reasonable or probable cause, whereas the malicious abuse of process is the employment of a process in a manner not contemplated by law, tor to effect a purpose which such a process is not intended by law to effect. 1 Am J2d Abuse P § 2. [2]

1. The use of legal process in a manner not contemplated by the law to achieve a purpose not intended by the law.  EXAMPLE: causing an ex-husband to be arrested for nonsupport of his child in order to secure his agreement with respect to custody.
     See malicious abuse of process.  Compare malicious use of process. [3]

Excerpt from Martin L. Newell’s A Treatise on the Law of Malicious Prosecution, False Imprisonment, and the Abuse of Legal Process 7 (1892):

     “Distinction between a malicious use and a malicious abuse of process. — There is a distinction between a malicious use and a malicious abuse of legal proc ess.  An abuse of legal process is where the party employs it for some unlawful object, not for the purpose which it is intended by law to effect; in other words, it is a perversion of it.  For example, if a man is arrested, or his property seized, in order to extortfrom him, even tho8ghy it be to pay a just claim, other than that in suit, or to compel him to give up possession of a deed or anything of value not the legal object of the process, it is settled there is an action for such malicious abuse of process.  it is not necessary to prove that the action in which the process issued has been determined or to aver that it was sued out without probable cause.”

     Excerpt from Restatement (Second) of Torts § 682 (1977):

     “One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed is subject to liability to the other for harm caused by the abuse of process.

malicious abuse of process:

1. A willful and intentional abuse or misuse of process to attain an objective which is unlawful in itself or beyond the purposes for which the process may be legally employed. Anno: l4 ALR2d 322; 1 Am J2d Abuse P § 6. [2]

1. The willful and intentional misuse of process for a purpose other than the purpose for which it was designed.  EXAMPLE: subjecting an adverse party to excessive litigation  expenses by the unrestrained use of process, such as depositions, interrogatories, motions to compel discovery, and the like. [3]

Related Terms:

process – the means of compelling a defendant to appear in court (civil or criminal cases), and all the acts of the court from the beginning to the end of an action or proceeding.

due process – the conduct of legal proceedings according to established rules, forms, and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.

  • procedural due process – a regular course of justice, which is not unreasonable or arbitrary, with minimal requirements of notice and a hearing especially if the deprivation of a significant life, liberty, or property interest may occur, in pursuance of an effective remedy secured by the law and the state.
  • substantive due process – the doctrine that the Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content and to further a legitimate governmental objective, and the freedom from arbitrary or capricious in making, interpreting, or enforcing the law.
    • economic substantive due process – the doctrine that certain social policies, such as the freedom of contract or the right to enjoy property without interference by government regulation, exist in the Due Process Clause of the 14th Amendment, particularly in the words “liberty” and “property.”

discovery abuse – misuse of the pretrial discovery process, especially by

(1) requesting unnecessary information;
(2) requesting information for an improper purpose; or
(3) failing to respond adequately to a proper discovery request.
 — aka abuse of discovery.


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[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[2]: Ballantine’s Law Dictionary with Pronunciations Third Edition by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.


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