7:8 Probable Cause

• Jurisdiction: Arizona

§ 7:8 Probable Cause

The existence of probable cause is a complete defense to malicious prosecution.^[335] This element tends to focus on what investigation the attorney made before filing or continuing a lawsuit.^[336] While the jury determines the facts regarding probable cause, the judge always decides whether probable cause existed, not the jury.^[337] Furthermore, opinion testimony from other attorneys regarding probable cause is irrelevant and not to be considered.^[338]

The trial court must determine whether the claim was objectively reasonable and if not, whether the attorney subjectively believed the claim to be...