If you have been served with a civil lawsuit, you are now the defendant in a case. You will have to answer the complaint, but did you know that you have more options than simply defending yourself? You may also have the option to bring a counterclaim or a crossclaim against the plaintiff or other defendants. This is essentially a way of turning the tables on the plaintiff (the person filing the complaint), alleging that they are actually the ones at fault and forcing them to respond and mount a defense.

While these terms may sound like legalese, they are practical tools, valuable arrows for your quiver should you find yourself or your business embroiled in litigation. Here, we provide a high-level primer of each type of claim: what they are, what purposes they serve, and how you and your litigation attorney might choose to use one offensively in a lawsuit. 

What Is a Counterclaim?

Think of a counterclaim as saying, “actually, Plaintiff, you are the one at fault.” Sometimes called a “countersuit,” a counterclaim is a civil legal claim that a defendant can file against the plaintiff in the very same case. For example, if two parties to a contract start feuding, the plaintiff may sue the defendant for breach of contract. If the defendant believes that the plaintiff is the one who breached, the defendant can file a counterclaim against the plaintiff. Practically, this will look a lot like the original complaint the plaintiff filed, listing out the allegations, specific legal claims, and a demand for monetary relief. However, a counterclaim is not a separate lawsuit altogether. It is a part of the original lawsuit and will be litigated and adjudicated at the same time as the original claim. The bottom line: it complicates the lawsuit quite a bit.

To further muddy the waters, there are two common types of counterclaims:

–       Compulsory Counterclaims: A defendant can bring as many counterclaims as it wants against a plaintiff. However, there are certain instances where a claim must be brought in the same case and that is called a compulsory counterclaim. These are claims brought by a defendant against the plaintiff that arise from the same transaction as the plaintiff’s original claim. More simply put, if the counterclaim is “logically related” to the plaintiff’s claim, it must be brought as a counterclaim during the plaintiff’s suit.

Example: Plaintiff is a general contractor and Defendant is a homeowner. Defendant hires Plaintiff to renovate her kitchen. Defendant doesn’t pay Plaintiff for the services, and Plaintiff sues. At the same time, Defendant sues Plaintiff, alleging she didn’t pay because Plaintiff did shoddy work on her kitchen. These two situations – nonpayment on the contract and the allegation of shoddy work – arise from the SAME event (the kitchen renovation).

–       Permissive Counterclaims: On the other hand, a defendant has the choice to bring a permissive counterclaim against the plaintiff in the same case. If it chooses not to, it can instead sue the plaintiff at a later time, in a later case. If the claim does not arise from the same general circumstances as the plaintiff’s original claim and is not logically related to it, it is usually considered a permissive counterclaim.  

Example: In the same situation above, Defendant believes Plaintiff did shoddy work on another renovation project at her previous home. Defendant may raise a counterclaim in this same lawsuit, or, because it touches on an unrelated project and matter, she may file a separate lawsuit entirely.

What Is a Crossclaim?

The main difference between a counterclaim and a crossclaim is who is counter-sued. A counterclaim is brought by a defendant against the opposite party, the plaintiff. A crossclaim is a claim by either a plaintiff against another plaintiff or a defendant against another defendant. Simply put, it is a claim brought against someone on the same side of the aisle on a case. 

Let’s take the same example: when Plaintiff sues Defendant for non-payment, imagine Defendant brings in her ex-spouse as a co-defendant, claiming that he is the one who initially agreed to pay the contractor for the renovations. This is her way of saying, “I’m not liable for the breach – HE is.”  

What Counterclaims and Crossclaims are NOT

Neither a counterclaim nor a crossclaim is a substitute for providing an answer to a complaint. If you are served a complaint, you generally must file an answer to the complaint, whether or not you intend to bring a counterclaim or crossclaim. The answer is the defendant’s response to the plaintiff’s original suit, while the counterclaim and crossclaim are the defendant’s additional allegations and claims against the plaintiff or co-defendant, as applicable. 

How Litigants Can Use Counterclaims and Crossclaims to Their Advantage

Counterclaims and crossclaims are important tools in civil litigation. They enable defendants and plaintiffs to raise issues in the same case and to streamline the litigation process. However, there are some pitfalls to avoid to ensure that you use these tools to your advantage, not the other way around. 

First of all, it is essential to remember that a counterclaim and crossclaim must be brought in “good faith.” This means you may not use them to simply exact revenge, delay the proceedings, or intimidate the other party. As with any lawsuit, you must have a legally-sound basis for raising the claim. 

Additionally, for anyone considering filing a lawsuit, realize that there is a high probability that the defendant might bring a counterclaim, or, if you are a defendant in a lawsuit, that the other defendants might bring a crossclaim against you. This is vital to remember when involving yourself in litigation: even if you start as the plaintiff, you may find yourself on the defensive. 

Contact a Civil Litigation Attorney Before Filing Your Claims

Because the landscape of crossclaims and counterclaims can quickly become complex, reach out to one of our experienced civil litigation attorneys to help you craft your case.