How to Countersue If Sued in Small Claims Court

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There are several reasons to countersue. When you file a counterclaim, you are forcing the plaintiff in the original suit to act as a defendant. You can serve the counter-defendant by certified mail, through a disinterested party over the age of 18, by sheriff delivery or via substituted service.

If you are sued in small claims court, you have the option to file a countersuit against the plaintiff. Legally, this countersuit is called a counterclaim. You can file your counterclaim as part of the original court proceedings in which you are the defendant. While making sense of exactly what is going on in a stressful time of trial can seem difficult, the process of filing a counterclaim is fairly straightforward.

What Is a Counterclaim?

Your counterclaim does not need to have occurred during the event for which you are being. For example, if you had property seized due to lack of payment, you can file a counterclaim and allege that paymyent was actually not overdue. You can also sue due to financial, mental or physical damages incurred during the original case or any other time.

Reasons to Countersue

There are two types of counterclaims that you can file: compulsory or permissive. A compulsory claim is one that occurred during the original suit. To count as a compulsory claim, you must be able to prove that your claim happened during the events of the claim in which you are the defendant.

On the other hand, permissive claims refer to any countersuit that is filed for events unrelated to the original suit. For example, if you are suing for lost wages for the time you missed during court proceedings, that would be considered a permissive claim.

When you file a counterclaim, you are forcing the plaintiff in the original suit to act as a defendant. To signify that there is a countersuit, the plaintiff is called a counter-defendant or a cross-defendant. You would be considered the counter plaintiff. When you file your counterclaim, you do not need a lawyer. Some states do not allow attorneys to represent either party during a small claims case. This ensures that both parties have an equal chance to be heard.

Is Someone Suing You?

Typically, people are aware of the disagreement that produces a lawsuit. However, there are times that you may believe that you will be sued and have not yet gotten served paperwork. If you think that you are being sued, check court records in your jurisdiction. To find out what your jurisdiction is, call the city or county buildings of your area of residence.

If the plaintiff of your case hasn’t made a reasonable effort to inform you that you are being sued, then the case cannot proceed. The presiding judge in the case will be the final word regarding all attempts to contact. Basically speaking, if the judge believes that reasonable efforts were made to inform you, then the case can go on. If you do not find out about a case until after the judgment was made, you may be able to have that default judgment thrown out of court. Doing so will start the trial process over again.

Filing a Counterclaim

To file a counterclaim, first obtain the correct petition form from the clerk of court in the jurisdiction of the suit. What the petition forms are called varies from state to state. To ensure that your counterclaim is heard, file it within the required time frame laid out by your state. In all states, you must file your petition in the same court that is hearing your original case.

When you are filing a compulsory claim, you must file it against the plaintiff along with other documents pertaining to the original claim. If you do not file your petition as a counterclaim, you lose the ability to file a related suit of your own. Compulsory counterclaims indicate you feel that the plaintiff is in fact at fault for a part of the damages.

For example, in the case of a personal injury lawsuit, Sally might sue Mike for damages. However, if Mike feels that Sally is actually at fault, he can assert a compulsory counterclaim. A compulsory counterclaim generally must be a part of Mike's initial response to Sally's action. Mike can't make that claim later on or in another lawsuit.

As is true when filing any lawsuit, there will be a filing fee. If you believe that you will be awarded your countersuit, you can obtain a fee waiver form in most states. The cost of filing your petition varies from jurisdiction to jurisdiction. To find out what your filing fee may be or to see if you qualify for a fee waiver, contact the clerk of courts in the jurisdiction hearing your case.

From there, proceed in the same way as if you were the original plaintiff. This means that you have to serve the counter-defendant. If you are unable to contact the counter-defendant directly, you must be able to prove that you made reasonable efforts to inform him of your countersuit. As with most small claims court cases, the rules for serving the counter-defendant vary from state to state.

You then need to obtain a court date. This date is set by the clerk of court. Both you and the counter-defendant will be made aware of the court date. When you arrive in court, be aware that the judge will try both claims at the same hearing. This is typically done because counterclaims are a reaction to the original suit. If the judge chooses, however, she can judge your counterclaim separately.

How to Serve a Counter-Defendant

You can serve the counter-defendant by certified mail, through a disinterested party over the age of 18, by sheriff delivery or via substituted service. Using certified mail is a straightforward way to serve your countersuit. Its benefit is that you do not have to contact the counter-defendant directly. However, you run the risk of him refusing to sign, ignoring the mail or otherwise not having the assurance that he received the documents.

Disinterested parties are private individuals that are not affiliated with you or the counter-defendant. Sheriff delivery may or may not have associated fees. However, it is a good option, in that you get the authority of having a sheriff deliver your countersuit.

"Substituted service" refers to leaving the counterclaim in a place of residence or business of the counter-defendant. When doing this, it is important to have video or photographic evidence that you left the counterclaim in a place where it would be noticed. What counts as a visible location varies from state to state and even from the opinion of one judge to the next.

Lawyers and Small Claims Courts

You should never need a lawyer for small claims court. In fact, Michigan, Nebraska and California, along with a handful of other states, prevent you from having a lawyer act on your behalf. This is mostly due to the straightforward nature of most small claims cases. For personal use, hiring a lawyer typically costs more than any payments you would be awarded and thus is not cost-effective.

If you go to court and find that the counter-defendant is using a lawyer and you are not, the court will typically give you the chance to retain the services of a lawyer. In cases where insurance coverage is involved in the suit, that insurance company may provide a lawyer to represent you as part of your package. To find out if you are eligible for this service through your insurance, contact your provider.

Suing for Emotional Distress

One of the most common counterclaims to make is for emotional distress. Claiming emotional distress should not be taken lightly; depending on the judge, you may have to provide personal information as proof. As far as the courts are concerned, emotional distress will display differently for every person. Many different symptoms are eligible to be heard in court, ranging from PTSD to nightmares. To prove emotional distress, the only major contributing factor is that the distress stops you from functioning appropriately in your day-to-day life. Emotional distress can be caused by physical injuries or other forms of trauma.

There are two legal forms of emotional distress: intentional and negligent. A claim of intentionally caused emotional distress must be accompanied by proof that the harm was the intended result of the action that caused it. Because of this, most counterclaims are for negligent, emotional distress. The proof for this sort of emotional distress is easier to obtain and typically includes the word of your doctors and or a mental health professional.

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About the Author

Danielle Smyth is a writer and content marketer from upstate New York. She holds a Master of Science in Publishing from Pace University. Her experience includes years of work in the insurance, workers compensation, disability, and background investigation fields. In addition to being the content writer and social media manager for Alliance Worldwide Investigative Group, she has written on legal topics for a number of other clients. She owns her own content marketing agency, Wordsmyth Creative Content Marketing (www.wordsmythcontent.com) and enjoys writing legal articles and blogs for clients in related industries.