A claim for malicious prosecution of a civil claim (lawsuit) is a lawsuit filed by a person or entity who was previously wrongfully sued in a civil lawsuit. The elements of a claim for malicious prosecution vary from state to state, but the plaintiff generally must prove: (1) the institution or continuation of civil proceedings (a lawsuit) against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in plaintiff's favor; and (6) special damages.

A claim for malicious prosecution of a criminal prosecution or case is similarly a tort claim or cause of action that requires the plaintiff to prove: (1) the initiation or continuation of a criminal prosecution; (2) lack of probable cause for the criminal prosecution; (3) the criminal prosecution was motivated by malice; and (4) the criminal prosecution was terminated by dismissal of the case or charges or a finding of not guilty by the jury or judge.

In North Dakota, a claim for malicious prosecution, whether for a civil or criminal case, allows a person to seek redress if they were wrongfully subjected to legal proceedings. For a civil claim, the plaintiff must demonstrate that there was an institution or continuation of a civil lawsuit against them, that the defendant was responsible for or insisted on the proceedings, that there was malice behind the commencement of the lawsuit, that there was a lack of probable cause to proceed, that the proceedings ended in favor of the plaintiff, and that they suffered special damages as a result. For a criminal malicious prosecution claim, the plaintiff must prove the initiation or continuation of a criminal prosecution against them, the absence of probable cause for the prosecution, that the prosecution was driven by malice, and that the prosecution ended in a dismissal or a not guilty verdict. These elements must be established to the satisfaction of the court for a successful claim. It is important for individuals considering such a claim to consult with an attorney to understand the nuances of state statutes and case law that may affect their case.