Vail Law: Counterclaims, cross-claims and third-party claims
Say you’ve been sued.
Sorry.
Besides grumbling, searching for a voodoo doll, a set of sharp pins, and answering the darn complaint, what can you do?
Well, it all depends.
First things first, however.
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If you are sued in state court in the state of Colorado, you have 21 days after the date you’re served to file your answer. If you are out of state, your answer will be expected to be filed with the court within 35 days. “Served” means that you are formally notified that the suit has been filed which usually happens by a private process server or a law enforcement officer dropping off a copy of the suit to either your home or your place of employment.
Service can also be waived if you are allowed to accept service without formal delivery. If you do not answer the complaint, then all things alleged within it are deemed admitted and, sure as shootin’, the party who filed the suit will move for a default judgment against you. Although default judgments can sometimes be set aside, so doing is often a Sisyphean task. Best not to go there if you can avoid it and simply answer the complaint instead.
In short, if you are served with a lawsuit, don’t neglect it.
What else you can do, depending on the circumstances, is to sue someone else. An answer is pure defense. The best you can do is not lose, knock the ball down, and keep the other guy from scoring. But if you want to play a little offense, there are a couple of potential avenues.
First, if circumstances warrant, you can countersue. In simple terms, what this means is, “If you sue me, then I’ll sue you right back!” A countersuit articulates legal claims against the party who started this whole thing — the party who filed the suit in the first place. Let’s say, for example, the party who filed the suit — the plaintiff — alleges that you breached a contract.
“Well, hold on Nellie, he’s the bad guy; he’s the one who breached the not contract, not me!” So, to set the record straight and seek damages against him, you countersue. He’ll get this chance to score but so will you.
Let’s say there are a couple of defendants, you among them. Let’s call them You and “the other guys.” To make this simple, let’s call the other guys “Little Cat A” and “Little Cat B.”
Again, Nellie needs to hold on just a blessed second. While the plaintiff may not exactly be the one in the wrong, neither are you. The bad guys here are Little Cats A and B. It is they, not you, who have caused all of the commotion. If anyone is at fault here, it’s them. You say to your lawyer, “Hey, this just isn’t fair. Why should I be on the hook when Little Cats A and B are the ones at fault?”
“Wanna play some offense?”
“Damn right, I do!”
And so, you file a cross-claim. In essence, what your cross-complaint says is “Hey, it’s them, not me! A and B are the cats at fault.”
And then there is the circumstance where the bad guy is chortling over his Skittles and beer. Word on the street is that you — and maybe Little Cats A and B as well — have been sued by the plaintiff but the guy at the pub has skated off scot-free.
“Whoa, whoa, whoa,” you screech into your Samsung. “The real bad actor here is the guy bellying up to a King of Beers who isn’t named in the complaint at all. Why are Little Cats A and B — and especially me — up to our pupiks in a lawsuit, when the guy at fault is laughing all the way to the bank?”
As if reading from a script, your lawyer says, “Wanna play some offense?”
You, who are a little more flexible in your lexicon, reply, “Darn tootin’!”
And so, the lawyer tells you all about third-party claims. “Third-party claims,” he says, “entitle you to bring others into the lawsuit who have a direct nexus to the wrongs complained of but who flew under the plaintiff’s radar.”
“Wot?”
“The guy who’s sitting at the bar, enjoying his brew, thinking that he got away with it.”
“Yeah.”
“Let’s go get ’em.”
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Counterclaims are like a superball bouncing ball back at the bouncee, the guy who lobbed it in the first place. Crossclaims are suits that point at the real responsible party who’s already at the party. Third-party claims bring in those who shoulda been brought in in the first place; “welcome to the party, boys,” you might be tempted to say.
See how easy this all is?
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars.”
