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In a vexatious litigation action, how do you prove damages where some claims have probable cause but others don't?

Waterbury, CT |
Filed under: Lawsuits and disputes

I know in Connecticut you can collect damages if, some but not all, claims in the underlying action were brought without probable cause. Furthermore, I know the burden is on the plaintiff to prove them. However, as a practical matter, how are damages in this instance proven and what must a plaintiff demosntrate/introduce to recover? Ive looked in CT and other days, but can't seem to find anything explaining this.

That was not the question. The question is, how does a plaintiff prove or establish his/her damages in a vexatious litigation case where some of the claims have probable cause and other claims do not. I.e. what must the plaintiff show to establish her damages or how does the plaintiff go about apportioning damages between the good claims and the bad claims. Not what must be shown to demonstrate an absence of probable cause.

Attorney Answers 2

Posted

Without probable cause in CT is defined in Civil Jury Instructions 3.13-5 (Vexatious Suit) & 3.13-6 (Civil Common Law):
3.13-5: Without probable cause
A person has probable cause to commence or prosecute a civil (action/proceeding) on a claim of when (he/she) has knowledge of facts, actual or apparent, strong enough to justify a reasonable person in the belief that (he/she) has lawful grounds for prosecuting the defendant in the manner complained of.7 A person has lawful grounds for prosecuting a claim when (he/she) has a genuine belief in the existence of facts that support each essential element of that claim, when those facts would warrant a person of ordinary caution, prudence and judgment, under the circumstances, to entertain that belief.8

Under our law, one essential element of 's claim of , as made against in the underlying (action/proceeding), was that . here alleges and has sought to prove that when commenced and prosecuted the underlying (action/proceeding) against (him/her), (he/she) lacked probable cause to do so because (he/she) lacked knowledge of facts sufficient to justify a reasonable person in believing .
3.13-6:

Without probable cause
A person has probable cause to commence or prosecute a civil (action/proceeding) on a claim of when (he/she) has knowledge of facts, actual or apparent, strong enough to justify a reasonable person in the belief that (he/she) has lawful grounds for prosecuting the defendant in the manner complained of.4 A person has lawful grounds for prosecuting a claim when (he/she) has a genuine belief in the existence of facts that support each essential element of that claim, when those facts would warrant a person of ordinary caution, prudence and judgment, under the circumstances, to entertain that beli

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Posted

I've not handled a vex. litigation claim, but generally speaking, if you incurred legal fees on the underlying action, those would be your economic damages, along with medical bills if you incurred medical treatment for physical or emotional sickness relating to the underlying case. That's harder to prove and I'm not sure how you would go about apportioning. I'm sure the defendant will want to do that if it can be done.

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