Be sure to ask the attorney what he or she charges. At the consultation, describe your situation and ask the attorney what counterclaims he or she thinks you could bring.
You can also bring counterclaims unrelated to the incident that gave rise to the plaintiff’s suit against you. For example, your roommate might sue you for hitting her car when you pulled into the driveway. You could countersue for money she owes you. The debt and the car accident are unrelated, so it is a “permissive” counterclaim. You are not required to bring permissive counterclaims, but for the sake of efficiency you could. [3] X Research source
Pattern jury instructions. Jury instructions nicely lay out the different legal elements you need to prove to win your cause of action. Many states publish their jury instructions online. [4] X Research source [5] X Research source [6] X Research source You can search for “your state” and “jury instructions. ” Then find the instructions that relate to your cause of action. Court opinions. Court opinions also explain the law in a helpful way. You can find court opinions at Google Scholar. [7] X Research source Click on “case law” and then select your court. Type in the cause of action you want to bring, e. g. , “fraud” and read through the court opinions.
Duty. The person you are suing owed you a duty of reasonable care. You can often prove a duty where you had a professional relationship with someone, e. g. , you hired a doctor or carpenter. Sometimes duties are created simply by how physically close you are. You owe the cars around you a duty to drive carefully on the road. Breach. To sue for negligence, the person who owed you a duty had to have broken that duty. In other words, they didn’t exercise reasonable care. Causation. The failure to exercise reasonable care must have been the cause of your injury. Damages. You must have in fact been injured. If a doctor gives you the wrong medicine, but you aren’t injured, then you don’t have a negligence suit.
If you are filing a counterclaim in state court, check with your state’s rules to make sure you file in the correct manner.
In some situations, you might not become aware that you have a counterclaim until you have already responded to the lawsuit. If the judge gives you permission, then you can file a separate counterclaim. In this situation, you will need to draft a new pleading. The pleading will be set up like the complaint you received: same caption information, formatting, etc. But you would title the document “Defendant’s Counterclaim Against Plaintiff for Negligence” or something similar.
“For her counterclaim against plaintiff Acme Construction, defendant Lisa L. Jones hereby states as follows…. ”[11] X Research source
Identify yourself and the person you are suing. If either you or the plaintiff is a corporation, then identify the state of incorporation and where the primary office is located. Provide dates and other information for the incident that is the subject of your counterclaim. For example, if you were in a car crash on August 1, 2015, then state the date and location of the crash. Allege that the person you are suing (who is the “defendant” for purposes of your counterclaim) violated the law in some way. For example, “Defendant’s negligent course of conduct injured Plaintiff. ”
Use section headings for each cause of action. For example, you could write, “Count One—Negligence by Acme Construction,” “Count Two—Fraud by Acme Construction,” etc. Be sure to allege each element for the cause of action. For example, if you are suing for negligence, then you would need to allege all four elements: duty, breach of the duty, causation, and damages. [14] X Research source Accordingly, you would state, “Acme Construction owed Plaintiff a duty to use reasonable care after Plaintiff hired Acme to remodel her kitchen. ”
Punitive damages. Whereas compensatory damages are meant to reimburse you for your financial loss, punitive damages are meant to punish the person you are suing. [16] X Research source Often, they are a multiple of your compensatory damages. Punitive damages may be available if the person you are suing hurt you intentionally. Prejudgment and/or post-judgment interest. In some situations, such as a contract case, you can get interest on the amount owed to you from the date the contract was breached. This interest is meant to compensate you for the loss of your use of money. [17] X Research source You may also qualify for post-judgment interest from the date you win the lawsuit to the date you get paid. Attorney’s fees and costs, if available by law. For some causes of action, you can be reimbursed for the costs of the lawsuit and for your attorney’s fees if you win. Other relief as deemed appropriate. This is a good “catch-all” to include in your counterclaim.
If you are representing yourself in the lawsuit, include the words “pro se” or “pro per” after your name.
In many counties, you can pay the sheriff a small fee to make hand delivery, or you could hire a private process server. Depending on your court, your server may need to fill out a “proof of service” form, which you can get from the court clerk. In other courts, you need to include a “certificate of service” as part of your answer. This should be on a separate piece of paper, titled “Certificate of Service,” and state the day you served the answer on the plaintiff, as well as the method of service (hand delivery, first class mail, etc. ) Sign your certificate.
You might have to pay a filing fee, which will depend on the court. Call ahead of time to check the amount and method of payment. Remember to include your certificate of service or the original, signed proof of service form with the answer you file with the court.
Try to take photographs during the same time of day. Also take pictures from many different angles. [21] X Research source
You should also get a copy of the police report, which often contains the names of witnesses. [22] X Research source
If you had to pay money to fix a problem caused by someone else, then get receipts. You can be reimbursed for any money spent treating an injury, fixing your car, etc. If you were unable to work because of the injury, then gather proof of your income. Get W-2 forms, pay stubs, or tax returns.
You should also take color photographs of your injuries, preferably as soon as possible so that wounds, bruises, and cuts still look fresh.
Document where you feel pain: in your hip, shoulder, head, all over, etc. Describe the severity of the pain. Is it a constant dull ache, or sharp shooting pain? Do you cry out in pain? Identify the medicines you take to try and treat the pain. Explain whether they work and for how long. Explain the consequences of the pain. Is it hard to sleep more than four hours at night? Are you immobile? Have you withdrawn from people?
You could also have a therapist, counselor, or psychiatrist testify at trial as to the injury’s effect on your mental health.
