I sued my contractor and he responded with a counterclaim! Now what?

Counterclaims are a common lawsuit tactic -- learn how to fend one off.

Question

My contractor was supposed to keep to a strict work schedule when repairing my home electric system. He was three months late in finishing the project, despite my repeated communications and warnings. He also didn’t install the correct wiring.

I sued him in small claims court, hoping to get my deposit back. But when my contractor filed his answer, he included a counterclaim for nonpayment. He’s asserting that I still owe him money! What should I do now? Is the small claims judge likely to accept his side of the story? The last thing I want is to pay for small claims court and come out owing even more!

Answer

First of all, do not panic. It is not uncommon for a defendant in a lawsuit to file a counterclaim.

Sometimes this counterclaim is based on meritorious facts, but other times it is merely a strategy – a technique to put the plaintiff on the defensive, and push the plaintiff to settle the case, since you too now have “skin in the game.”

A counterclaim turns your contractor into a plaintiff himself. Just as you must prove your claims against him by a preponderance of the evidence, he too must prove his claims against you.

If you are hit with a counterclaim, what should you do? First of all, check with your court clerk on whether or not the court will allow you to file a document called a “reply.” A reply is like an answer, except that it responds to the allegations in a counterclaim, rather than the allegations in a complaint.

If you can file a reply, then you should carefully respond to whatever your contractor has alleged. Here, you might respond by saying that you did, in fact, pay your contractor every penny you were required to pay under the contract, and that his counterclaim is entirely false. Or you might respond by saying that you stopped paying once it became clear that your contractor was in breach of the contract himself.

If your court does not allow written replies, you will need to be prepared to address your contractor’s allegations on the trial date, before the judge. Consider the evidence you might bring to refute the contractor's claim. If he’s saying you never paid him, you might bring copies of cancelled checks or bank statements showing exactly how much you paid. You should also bring copies of the original written contract (if you had one), along with any emails or correspondence you have showing the date when he breached the contract.

More generally, you should not allow the counterclaim to intimidate you. If you were confident in the facts of your case before you knew about the counterclaim, nothing has changed. His claim is based on the same facts and circumstances as yours. Therefore, if you still believe that you can prove your case, and you are taking steps to ensure that you present a convincing, well-organized case, you have little to worry about.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
FEATURED LISTINGS FROM NOLO
Swipe to view more
NEED PROFESSIONAL HELP ?

Talk to a Real Estate attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you