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What is a Counterclaim?

Mary McMahon
Updated May 16, 2024
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A counterclaim is a claim that is brought against a plaintiff in a lawsuit by a defendant. For example, if a landlord sued a tenant for unpaid rent, the tenant might respond with a counterclaim that suggested that the landlord was actually in the legal wrong, thereby hoping to render his or her claim invalid. They are typically filed as part of a defendant's answer to an original claim, and there is a specific style and format that must be followed for the court to accept them.

Essentially, this type of claim raises issues that a defendant would have brought up in a court case, if he or she had been given the chance to go to court first. As such, it can contain a variety of material, ranging from accusations of fraudulent activity to claims which would pre-empt any attempt at a suit. The goal is to turn the tables on the plaintiff by bringing up more issues in the case and demanding redress.

In a compulsory counterclaim, the defendant must file or remain silent on the issue. Not all are compulsory, and the rules vary, depending on the region and the court. As a general rule, they involve only the original parties named in the suit and only the original situation that was brought to court. So, for example, a bank could sue a customer for unpaid fees, and the customer could respond with a counterclaim that stated that the bank had used illegal tactics to recover those fees.

In a permissive counterclaim, a defendant may raise issues, but if he or she doesn't, the right to sue for redress at a future point remains. In the example above, if the defendant was planning on joining a class action lawsuit of bank customers who had been poorly treated, he or she would not be obliged to file a counterclaim, because the suit would include additional parties and the scope of the claim would be larger than the original suit.

When dealing with a lawsuit, it is a good idea to find out about the regional rules governing counterclaims, which is something a lawyer can help with. Individuals don't want to miss out on filing and inadvertently waive their right to file suit in the future, and by the same token, they shouldn't feel hurried into filing if it's legally permissible wait. Lawyers who specialize in such cases can give the best advice on what to do.

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Mary McMahon
By Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a MyLawQuestions researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

Discussion Comments

By jcraig — On Apr 10, 2012

@TreeMan - I am not a legal expert, but I'm pretty sure that in order to file a criminal case for assault or something, you would have to take the initiative to file a police report. It seems like the case would probably be heard in two different places. One would be in a criminal court for the assault and the other would be in small claims court for your damage to the car. I do know that civil courts can't rule on criminal matters.

As far as a crossclaim goes, I just learned what that term meant a couple of weeks ago. It is basically when you are suing someone that is on the same side as you (either plaintiff or defendant). The example I saw was for a shipping company. If your package showed up damaged and it wasn't clear whether it was the shipping company or the original sender that damaged it, you could file a law suit against both of them. The counterclaim by the sender may be to you and the shipping company. In the end, the shipping company is like a defendant on both sides of the case.

By TreeMan — On Apr 10, 2012

I heard the term crossclaim the other day on a TV show, what exactly does it mean? I can't recall exactly what the specifics of that case were. It sounded kind of like a counterclaim but not quite.

Also, I know that counterclaims are usually thought of as being part of a small claims court, but is it also possible to have a counterclaim in a criminal court. I'm also wondering what would happen if someone's counterclaim in civil court counterclaim involved something that needed to be handled by a criminal court. Would it automatically move to the higher court?

I can't think of a good example, but if I accidentally scratched someone's car and then that person punched me, how would that lawsuit be covered in court?

By Izzy78 — On Apr 09, 2012

@Emilski - The civil procedure works a little bit differently in every state, so you would have to check with your local county clerk for the full details. I have been involved in a couple of cases as a plaintiff, so I've never actually had to go through the process of filing a counterclaim, but I think I know how it works, in general.

Once the plaintiff files the claim, the defendant is delivered a notice to appear in court. In my state, they must then fill out an additional form stating that they understand the conditions. They are also allowed to put in a counterclaim form at that time. Like I said, though, some states do it differently, so you would have to check to be sure.

By Emilski — On Apr 08, 2012

So, my main question is, if you are being sued, how exactly do you file a counterclaim against someone? I guess I don't even really know what the whole process is in the first place that you have to do to file a lawsuit against someone.

Are you given a letter or something that informs you of it or do you get a phone call or what happens? After that, do you have to go to the courthouse and fill out special forms for a counterclaim, or can you just bring them up in court when you go? What are the different types of things that you can file a counterclaim for?

I've never been involved with anything like this, and hopefully I won't, but I think it would be good information to have.

Mary McMahon

Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a...

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