Definition
Abuse of process is an intentional tort that occurs when a party uses a legitimately issued legal process — civil or criminal — for an improper purpose outside the scope of what that process was designed to accomplish. The key distinction from related claims is that the process itself need not be wrongfully obtained; it is the subsequent misuse of valid process that gives rise to liability.
A plaintiff asserting abuse of process must show that the defendant deployed some form of legal process (such as a subpoena, writ, garnishment, or arrest) as a means to coerce, harass, or gain an improper advantage unrelated to the legitimate object of the underlying proceeding.
Common Language
Wiktionary: "A cause of action in tort arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) that is not justified by the underlying legal action."
The Wiktionary definition is unusually close to the legal meaning here, but the critical gap is the word "process." In everyday speech, "process" means a general procedure or method. In law, "process" is a technical term referring to specific court-issued instruments that compel appearance, action, or compliance — summonses, subpoenas, writs, and the like. Abuse of process therefore does not mean abusing the legal system in a broad sense; it means turning a specific, formal legal instrument toward an unauthorized end.
Common Confusion
Abuse of process is frequently conflated with malicious prosecution. Both are intentional torts involving the misuse of legal proceedings, but they are distinct:
Malicious prosecution concerns the wrongful initiation of a proceeding — filing a lawsuit or criminal charge without probable cause and with malice, where the proceeding ultimately terminates in the plaintiff's favor. The gravamen is wrongful commencement.
Abuse of process concerns what happens after a proceeding is properly initiated. The process was legitimately obtained; the wrong lies in deploying it toward a collateral, improper purpose. A favorable termination of the underlying action is generally not required.
A useful shorthand: malicious prosecution attacks the decision to file; abuse of process attacks the decision to weaponize a specific legal instrument once the proceeding is underway.
Core Elements
Most jurisdictions recognize two essential elements:
1. Use of process. A legal process — formally issued by a court or under court authority — must have been used. Not every litigation act qualifies; the instrument must be one that carries legal compulsion.
2. Improper purpose. The process was used primarily to accomplish an objective not legitimate in the regular conduct of the proceeding. The defendant must have intended to use the process as leverage or a weapon for some collateral aim — extortion, harassment, coercion to settle an unrelated dispute, or forcing action the law does not require.
Some jurisdictions add a third element requiring that the plaintiff suffered a definite harm as a result. A few require affirmative acts beyond the mere filing of process. The two-element formulation remains the dominant framework.
Why It Matters in Research
Researchers will encounter two parallel tracks — civil and quasi-criminal — and should not conflate them. As a civil tort, abuse of process appears in personal injury and intentional tort surveys and requires attention to damages, pleading standards, and immunity doctrines (particularly litigation privilege, which in many jurisdictions blocks abuse of process claims for conduct occurring within judicial proceedings). The litigation privilege issue is a significant research trap: what appears to be a viable abuse of process claim may be extinguished by an absolute privilege that applies to communications and acts in the course of litigation.
The tort is also invoked defensively in federal civil rights litigation, where plaintiffs argue that state actors abused criminal or civil process to violate constitutional rights — a context with its own procedural overlay. Researchers moving between the state tort and the federal civil rights frame should treat them as analytically separate.
Historically, the tort developed most visibly around the misuse of arrest warrants and writs of attachment to coerce debt payment or property surrender. Modern cases have expanded to include subpoenas, lis pendens filings, and even third-party discovery tools deployed for improper purposes. The expanding catalog of qualifying "process" is an active area; older case law may reflect a narrower conception.
In jurisdictions that apply the Restatement (Second) of Torts framework, researchers should examine § 682, which provides the foundational formulation and has been widely adopted or adapted.
Historical Dictionary Support
Black's Law Dictionary captures both the motive element (malicious, unfounded use) and the purpose element (perversion of process to an unlawful object) with reasonable accuracy. The quoted Pennsylvania source — reflecting the 19th-century understanding — emphasizes perversion of purpose, which remains the conceptual core today.
What the historical dictionary entry underemphasizes is the distinction between malicious prosecution and abuse of process. Older sources, including early editions of Black's, sometimes treated these torts loosely or merged them under a general "malicious use of process" umbrella. Modern courts and commentators have worked to sharpen the boundary. Researchers using pre-20th-century legal dictionaries should be alert to definitions that blend the two.
The historical sources also reflect a narrower conception of qualifying legal instruments — predominantly writs and criminal process — that does not fully capture the variety of process forms recognized in contemporary litigation.
Jurisdictional Note
The elements, the scope of qualifying process, and the availability of the claim vary meaningfully across states. Some jurisdictions have substantially merged abuse of process with malicious prosecution into a single "wrongful use of civil proceedings" framework following the Restatement (Second) approach. Others maintain strict separation. Federal courts apply the law of the forum state for the state tort claim, while evaluating any federal civil rights dimension under independent doctrine.
Encyclopedia Cross-Reference
Intentional Torts — Persons — Abuse of Process (The Law Mind Torts & Personal Injury Encyclopedia)