By Daniel Hager
Your client won after being sued in what she believed was a meritless case. Her defense fees were high. She wants you to sue her former adversary and his lawyer for malicious prosecution.
Think long and hard before taking the case. Malicious prosecution is notoriously hard to prove — the probable cause standard is low, and malice difficult to prove. Study the elements of the tort carefully. Explain to your client — in writing — the challenges she will face.
She will probably draw an anti-SLAPP motion, which will likely be granted. The other side will then recover its reasonable attorneys’ fees and costs in bringing the motion (and fees on appeal if the ruling is affirmed), which will be substantial.
Lawyers who do not educate clients about these significant risks often next find themselves as defendants in malpractice cases, by clients who justifiably ask, “Why didn’t you tell me this would happen?”
Daniel Hager is Corporate Counsel to Ahern Insurance Brokerage.
This article was originally published in the July/August 2019 issue of San Diego Lawyer.
I have handled more plaintiff’s malicious prosecution cases over the past 35 years than anyone in California, and I completely agree with the comments in this article. Thanks to the Anti-Slapp statute, it has become a very difficult tort, and lawyers should fully advise their clients to avoid any surprises. You should also know that the Slapp motion, which is like a summary judgement motion, is made before any discovery has been conducted and stays all discovery in the case, so you must have all the evidence and the case put together before you file.