Filing a Car Accident Counterclaim

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A counterclaim is a legal claim that the defendant in a lawsuit can file against the plaintiff. It is not a separate lawsuit. A counterclaim must usually relate to the subject matter of the original complaint -- so it must pertain to the car accident and not some other legal dispute -- although there can be exceptions. Read on to learn more about counterclaims as part of a car accident lawsuit.

Counterclaims in Car Accident Cases

The standard type of counterclaim in a car accident lawsuit is when driver A claims that driver B was at fault and sues him/her for negligence. If driver B thinks that driver A was at fault, driver B might in turn file a counterclaim against driver A for damages caused by driver A’s negligence. Assuming that driver B has car insurance, his/her insurer will handle all aspects of the counterclaim. In fact, it is generally the car insurance company, and not the driver, who will decide if a counterclaim should be filed at all. If the driver wants to file a counterclaim, but the driver’s insurer does not want to file a counterclaim, no counterclaim will likely be filed. (Learn more about How Car Insurance Affects a Car Accident Claim.)

Let’s take a closer look at how the counterclaim in a car accident case will work. The lawsuit begins with the service of the Complaint and Summons on the defendant. In many states, the defendant will then have a short period of time, possibly four weeks, to determine whether he/she wants to file a counterclaim. If the defendant decides to file a counterclaim, he/she must file an Answer to the Plaintiff’s Complaint and then file the Counterclaim.

Discovery (i.e., the pretrial investigation process) will then begin on both the Complaint (the original lawsuit) and the Counterclaim. During the car accident discovery process, both parties will investigate the allegations that each other has made in the Complaint and the Counterclaim. Keep in mind that the parties are entitled to conduct discovery on the allegations of the counterclaim just as if the counterclaim was a regular lawsuit. The Plaintiff will try to prove that the Defendant was at fault for the car accident, and the Defendant will try to prove that the Plaintiff was at fault.

If the parties cannot settle the lawsuit, the evidence on the counterclaim is generally heard at the same trial in which the evidence on the main lawsuit is heard. The major difference between presenting evidence on the main lawsuit and evidence on the counterclaim is that it is the defendant who has the burden of proving the allegations of the counterclaim. This is because a counterclaim is an independent legal claim by the defendant.

Counterclaims at the Car Accident Trial

Let’s say that the parties complete discovery and conduct mediation, but the settlement negotiations fail. Now they have to go to trial. Let’s look at how a trial with a counterclaim proceeds.

In any trial, the plaintiff will make the first opening statement to the jury. Then, the defendant will make an opening statement. After the opening statements, the plaintiff presents his/her evidence first. After the plaintiff has finished presenting his/her evidence, the defendant will present his/her evidence on both the original Complaint and the Counterclaim. The defendant has to present evidence on why the plaintiff was negligent and on the defendant’s damages. After the defendant finishes presenting his/her evidence, the plaintiff will then have a chance to present additional evidence in response to the defendant’s evidence.

Finally, the parties will make their closing arguments. The defendant usually goes first and the plaintiff last, although, in some states, the plaintiff goes first, the defendant goes second, and then the plaintiff has the chance to have a short rebuttal.

The judge’s instructions to the jury and the jury deliberation form are more complicated when there is a counterclaim. In a regular car accident case, the jury simply decides if the defendant was negligence, and, if so, how much were the plaintiff’s damages. When there is a counterclaim, the jury has to decide if each party was negligence and what each party’s damages were. In order for the jury to understand what it is doing, the judge has to give the jury additional instructions to explain exactly what a counterclaim is and must remind the jury that the defendant has the burden of proving all of the allegations in a counterclaim.

Remember that, if you were sued because of a car accident and have car insurance, you must speak with the lawyer that the insurer provides for you to decide if he/she should file a counterclaim on your behalf. If you were sued because of a car accident and don’t have car insurance, you should contact a car accident lawyer as soon as possible to find out whether you should file a counterclaim.

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