How to File a Counterclaim in a Car Accident Case

Everyone wants to avoid car accidents. They are traumatic, to say the least. They often result in damage to your vehicle and injury to yourself. And after dealing with the damages and injuries from the accident, the last thing you want is a lawsuit. Indeed, the effects of a lawsuit can be worse than the accident itself. 

You likely feel like you need to defend yourself–both in the moral and legal senses. The good news is, you can defend yourself. It’s called a counterclaim. It’s the solution attorneys use every day as they represent their clients. It’s your tool to fight back when you’re sued. 

What is a counterclaim?

If you file a counterclaim, you’re responding to a claim filed by the other driver. In a lawsuit, the other driver is the plaintiff. As the defendant, this is your response. So, the plaintiff files a claim and you, as the defendant, file a counterclaim.

Your counterclaim is your argument. You’re defending yourself from the plaintiff’s accusations. It’s likely that you’ll also make accusations against the plaintiff in your response. These accusations could be in response to the plaintiff’s accusations. Or, they could be completely unrelated yet still relevant to the accident. You want the responsibility of the accident to be on them, not on you.


Let’s say you’re Driver A. You made a right-hand turn as the traffic light was turning from yellow to red. You had enough time to make it. Driver B was already speeding. He started to slow down, but he sped back up when his light turned from red to green. With a driver in the lane next to Driver B, he wasn’t able to get over in time. So, he slammed into you in a nasty rear-end collision. He’s filing a claim against you. He insists that you ran a red light and that he had the right-of-way. You file a counterclaim because you turned as the light was turning, and he was speeding. Since he won’t acknowledge his error behind the wheel and he’s accusing you, you have to fight back. 

Why file a counterclaim?

In some accidents, it’s clear who the at-fault driver is. If you were T-boned at an intersection where you had the right-of-way, the driver who hit you is at fault. But for other kinds of accidents, it can be downright hard to tell. 

Sometimes, the police arrive at the scene of the accident, but they don’t make an arrest. Instead, they document the details of the accident and issue tickets if it’s appropriate to do so. The details the police provide then go to the insurance companies.

It’s the insurance companies who then try to figure out who was at fault. Since the insurance company wasn’t at the scene of the accident, this is a very difficult job. They must decide who is at fault using the evidence provided to them. That evidence usually includes:

  • The police report
  • Pictures of the accident
  • Eye witness accounts
  • Statements from the drivers

But even with all that evidence, it’s not always easy to determine who was at fault. And oftentimes, both drivers were at-fault, to varying degrees. 

A lot of the time, the driver who caused the accident will file a claim against the driver they hit. They are likely to do so early on. They want to sue you before there’s a chance for the insurance or legal system to declare them guilty. That is an intimidation tactic. They hope that, by attacking you through the legal system, you’ll back off and not sue them. Don’t fall for this. File a counterclaim. The facts of the accident will speak for you, and you won’t owe them anything.


Driver A was merging on the freeway and had the right-of-way. Driver B was trying to get into the right-hand lane to be ready for the next exit. There wasn’t enough room for both drivers. Driver B hit Driver A on the side. Driver B is now suing Driver A for his injuries and the damage to his car, even though Driver A had the right-of-way. Driver A files a counterclaim stating that he isn’t responsible for Driver B’s injuries because he had the right-of-way.

What is mediation?

Most of these claims go through mediation first. And sometimes, they’re settled in mediation. A mediation takes place when neither parties can reach an agreement, but they don’t want to go to court, either. A mediator is a step between the parties and a judge or jury. While mediation is a great tool, it doesn’t always work. So, sometimes these cases go to trial. When they do, most counterclaims follow the same process. 

Driver A accuses Driver B of hitting them, but Driver B says it was Driver A’s fault. If you are Driver B, contact your insurance company. They’ll take care of it for you. In fact, in cases like these, it’s the insurance companies that file the lawsuits. Some drivers might file a lawsuit on their own. But most of the time, it’s the insurance company that represents them.

How do I file a Counterclaim?

If you want to file a counterclaim, you’ll need to take the following steps. You’ll take these steps after the opposing party serves you with a Complaint and Summons.

  1. File an Answer to the Plaintiff’s Complaint.
  2. File a counterclaim.
  3. Go through the pretrial investigation process (also known as Discovery).
  4. Try to prove the other driver’s fault in the accident.

If this sounds like Greek to you, we recommend contacting an attorney who specializes in personal injury car accidents. They know the counterclaim process inside out, so they can help you every step of the way. 

Legal Assistance

Have you been in a car crash? Did the other driver file a claim against you? If so, we urge you to get an attorney to represent you. It’s hard enough dealing with car repairs and personal injuries. Fighting a lawsuit is a battle you should not face alone. 

If you had car insurance at the time of the accident, your insurance company will make the decisions for you. They’ll decide whether to file a counterclaim. If they file a counterclaim, they’ll provide you with an attorney to represent you. You won’t have to do much on your end.

But, if you were in a car accident and you were not insured, you’re responsible to hire an attorney. We can’t say this enough: if you were uninsured and in an accident, hire an attorney. It’s crucial if you caused the accident, if you were even a little bit at fault, or if the plaintiff sues you. It’s illegal to drive without insurance, which is a problem your attorney can help you face. 

Lawsuit Info Center is here to help you through this process. Our website is full of resources, including tools to find an attorney. We provide a car accident settlement calculator and information on filing insurance claims. We also have settlement tips. If we can be of assistance, please don’t hesitate to reach out to us. 

To find out how much you may be able to recover in damages following an accident, check out our Injury Reward Calculator tool. While you’re there, get connected to local car accident lawyers in your area. Lawsuit Info Center has been offering free nationwide legal help for nearly two decades. There’s no better resource for those facing legal battles after an accident.