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 Wisconsin, a claim for malicious prosecution, whether for a civil or criminal case, is recognized as a way for a person to seek redress if they believe they were wrongfully subjected to legal proceedings. For a civil claim, the plaintiff must demonstrate that a lawsuit was initiated or continued against them without probable cause and with malice, and that the lawsuit ended in their favor, causing them special damages. Similarly, for a criminal prosecution claim, the plaintiff must prove that the criminal case was initiated or continued without probable cause, with malice, and that it ended in a dismissal or a not guilty verdict. It is important for plaintiffs to establish each element of the claim to succeed in a malicious prosecution case. An attorney can provide specific guidance on how these general principles apply to an individual case in Wisconsin, taking into account any recent changes in the law or relevant court decisions.