How to Countersue If Sued in Small Claims Court

By Jessica McElrath
Countersue If Sued in Small Claims Court

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A defendant may countersue in a legal action. This is referred to as a counterclaim. A counterclaim is a legal claim filed by the defendant. The defendant can raise a claim that arises out of the same events or a claim that arises out of unrelated events. A claim is compulsory if it arises out of the same events as the original claim and it is permissive if it arises out of unrelated events. A counterclaim forces a plaintiff to act as a defendant. A plaintiff is referred to as a cross-defendant or a counter-defendant and the plaintiff is referred to as a cross-plaintiff or a counter-claimant. In small claims court, the parties can represent themselves or can hire an attorney. In a few states, such as California, small claims courts do not permit attorneys to represent the parties.

How to File a Counterclaim

File a counter-claim petition with the court clerk. Obtain the correct petition to present your counterclaim. The name of the petition is different in every state. The defendant must file the petition in the same court as the plaintiff's claim. Like the original claim filed by the plaintiff, the defendant must state the facts that give rise to the cause of action and the damages or remedy it seeks. If it is a compulsory claim and the defendant fails to raise the claim, it is lost forever. The defendant must file the counterclaim with the clerk within the time specified by the state.

Pay the filing fee or obtain a fee waiver form. The cost of filing the petition will vary according to jurisdiction. The court clerk will waive the fee for qualified defendants. The standard for determining whether an applicant qualifies varies by state.

Serve the plaintiff. The plaintiff must receive notice of the countersuit. Every state has different rules regarding service of process. Service of process is the delivery of the legal documents to the opposing party. A few ways service of process can occur include personal service (a disinterested party over age 18 delivers the documents), certified mail, sheriff delivery or substituted service when unable to locate the party (leaving a copy at the opposing party's home or workplace).

Obtain a court date. After service is complete, the court clerk will set a court date for the hearing.

Attend the hearing. The judge will address the original claim and the counterclaim in the same hearing. If the counterclaim and the original claim concern unrelated facts, the judge may decide to address the cases separately.

About the Author

Jessica McElrath has been a freelance writer since 2000. McElrath is the author of "The Everything John F. Kennedy Book" and "The Everything Martin Luther King Jr. Book." McElrath has a Bachelor of Arts in history from the University of California at Berkeley and a Juris Doctor from Santa Clara University School of Law.

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