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ABUSE OF PROCESS model jury charge 3.30D

ABUSE OF PROCESS model jury charge 3.30D

The plaintiffs in this action allege that the defendant is liable for abuse of process. The defendant denies the allegation.

There are two basic elements necessary to sustain the cause of action of abuse of process. They are (1) that the defendant made an improper, illegal and perverted use of the legal procedure, that is to say, his/her resort to the legal process was neither warranted nor authorized by law,[1] and (2) that the defendant had an ulterior motive in initiating the legal process. In other words, abuse of process is the misuse or misapplication of the legal procedure in a manner not contemplated by law.

Specifically, the plaintiff contends that the defendant utilized the legal process to intimidate, harass and coerce the plaintiff in order to obtain a collateral advantage. In other words, the plaintiff contends that the defendant invoked the legal process to accomplish some unlawful end, namely, to compel the plaintiff to do some collateral thing which he/she could not legally be compelled to do.


The defendant denies this allegation and asserts that he, the defendant, made a regular and legitimate use of the process. The defendant contends that he/she employed the legal process to have his/her claims adjudicated or to enforce legitimate claims.

In short, in order for the plaintiff to prevail in this action, he/she must prove by a preponderance of the evidence that the defendant made an improper, illegal, and perverted use of the process and that there existed an ulterior motive or purpose on part of the defendant.

If you find that the use of the process was a proper one, then I charge you as a matter of law that the motive is immaterial. The legal pursuits of ones rights, no matter what may be the motive of the promoter of the action, cannot be deemed either illegal or inequitable. It is the misuse of the process, though properly obtained, which constitutes the misconduct for which liability is imposed.

If you find, therefore, that the defendant made a perverted use of legal procedure for which it was not designed, with an ulterior purpose, than I charge you as a matter of law, the law provides a redress and the defendant is thereby liable to the plaintiff.

NOTE TO JUDGE

See Ash v. Cohn, 119 N.J.L. 54 (E. & A. 1937) in which the court distinguishes malicious abuse of process from an action for malicious use of process:

An action for malicious abuse of process is distinguished from an action for malicious use of process in that the action for abuse of process lies for the improper, unwarranted and perverted use of process after it has been issued while that for the malicious use of it lies for causing process to issue maliciously and without reasonable or probable cause. Grainger v. Hill, 4 Bing. N.C. 212. Thus it is said, is substance, that the distinction between malicious use and malicious abuse of process is that the malicious use is the employment of process for its ostensible purpose, although without reasonable or probable cause, whereas the malicious abuse is the employment of a process in a manner not contemplated by law. Another fundamental distinction is that in the case of malicious use it is necessary to allege that the action in which the process was used has terminated favorably to the plaintiff whereas in the case of the malicious abuse no such allegation is necessary. Saliem v. Glovsky (1942), 132 Me. 402; 172 Atl. Rep. 4; 50 C.J. 612, sec. 373. 119 N.J.L. at p. 58.

Prosser comments on the distinction between these causes of action in his treatise as follows:

Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently, in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause. It is often said that proof of malice is required; but it seems well settled that, except on the issue of punitive damages, this does not mean spite or ill will, or anything other than the improper purpose itself for which the process is used, and that even a pure spite motive is not sufficient where process is used only to accomplish the result for which it was created. Thus if the defendant prosecutes an innocent plaintiff for a crime without reasonable grounds to believe him guilty, it is malicious prosecution; if he prosecutes him with such grounds to extort payment of a debt, it is abuse of process. Prosser on Torts, Chap. 22, sec. 121 at 856-857 (4th ed. 1971).

See also Earl v. Winne, 14 N.J. 119, 135 (1953); 34 N.J. Super. 605, 616 (Cty. Ct. 1955), and Gambocz v. Apel, et al., 102 N.J. Super. 123, 128-130 (App. Div. 1968), certif. denied, 52 N.J. 485 (1968).



[1]The court may explain the phrase neither warranted nor authorized by law in the factual context of the particular case.

   
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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means: YOU DONT OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

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Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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