How to Tell if You are Being "Maliciously Prosecuted" in Wisconsin
Elements of the Tort of Malicious ProsecutionThe six elements in an action for malicious prosecution are:
1. There must have been a previous judicial proceeding brought against the victim.
2. The previous proceeding must have brought by the defendant in the malicious prosecution lawsuit.
3. The previous proceeding must have resulted in a judgment or ruling in favor of the defendant in the malicious prosecution lawsuit.
4. There must have been malice in instituting the previous proceeding.
5. There must have been lack of probable cause supporting the former proceeding.
6. There must have been injury or damage resulting to the victim from the former proceedings.
See 54 C.J.S., Malicious Prosecution, p. 955, A? 4; Yelk v. Seefeldt, 35 Wis.2d 271, 277, 151 N.W.2d 4 (1967), and Strid v. Converse,111 Wis.2d 418, 331 N.W.2d 350 (1983).
Elements of the Tort of Abuse of ProcessIn Maniaci v. Marquette University, 50 Wis. 2d 287, 299, 184 N.W.2d 168 (1971), Wisconsin adopted the tort of "abuse of process. The elements are: (1) a purpose other than that which the process was designed to accomplish, and (2) a subsequent misuse of the process. Id. at 427, 331 N.W.2d at 355. The court noted that abuse of process is broader than malicious prosecution and may provide a remedy where malicious prosecution will not. Malice, want of probable cause, and termination in the plaintiff's favor are not required. The victim must have suffered a pecuniary loss.