Litigation: Counter Suing the Plaintiff, Counterclaim and Reply
What happens if the Defendant also has potential legal claims against the Plaintiff? When the Defendant has legal rights which have been affected by the Plaintiff, the Rules of Civil Procedure allow the Defendant, in a manner of speaking, to bring his own suit within the action already filed by the Plaintiff. The way the Defendant does this is by including what are called Counterclaims within the body of the Answer.
Counterclaims are set forth in basically the same manner as the allegations of the Plaintiff's Complaint. Counterclaims which arise out of the same facts or occurrences described in the Complaint are called Compulsory Counterclaims as they must be brought within the existing lawsuit. Other Counterclaims which exist between the Defendant and the Plaintiff but do not arise out of the same events and occurrences are called Permissive Counterclaims. The Defendant may either bring these claims within the existing litigation or file a separate lawsuit to recover. The Defendant is allowed to counter-sue within the existing lawsuit by setting forth its own numbered paragraphs containing its own factual allegations. In a way, it is as if the Defendant is submitting her own Complaint at the same time she responds to that of the Plaintiff. Any Counterclaim gets served on the Plaintiff at the same time as the Answer. Since the roles in a Counterclaim are reversed (the Defendant is suing the Plaintiff), the Plaintiff now has the same obligations the Defendant had in regards to filing and serving its responsive pleading.
Instead of being called an Answer, this new responsive document is referred to as the Reply. As with the Answer, the Plaintiff is allowed Thirty (30) days from receipt of the Counterclaim in which to file the Reply and she can extend that period up to Sixty (60) days. When replying to the Counterclaim, the same rules regarding judicial admissions and denials apply. In addition, the Plaintiff must raise any Affirmative Defenses to the lawsuit, or else it loses them. A special rule for the Reply is that when the Defendant raises the defense of contributory negligence, the Plaintiff must include the affirmative reply of Last Clear Chance. This just means that if the Defendant wishes to argue that the Plaintiff's own lack of care caused the Plaintiff's injury, the Plaintiff can argue that the Defendant was in the best position to prevent the injury from occurring (the last clear chance to avoid the accident). Again, it is very important that the Plaintiff be careful in how it responds to the allegations of the Counterclaim and raises all applicable Affirmative Defenses so as not to negatively affect the case. After all of the required pleadings are filed and served on all parties, the parties proceed to the evidence-gathering stage of litigation. Attorneys commonly refer to this stage of the litigation as Discovery.