§13.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§13.8STRATEGIC AND PRACTICAL CONSIDERATIONS

Whether you represent the plaintiff or the defendant, consider and advise your client about possible counterclaims. If you represent the plaintiff, inform your client of the probable scope of the entire litigation, including any counterclaims that likely will be asserted, before filing the complaint. The risks and expenses of a counterclaim may outweigh the benefits of bringing the action. For example, many malpractice actions arise as counterclaims to collection actions filed against clients. If you represent the defendant, consider possible counterclaims at the outset of the litigation, because compulsory counterclaims that are not raised in a responsive pleading will be barred if an amendment of the pleadings is not permitted.

Generally plead a counterclaim if you are uncertain about whether you have to do so. Although in some cases it may not be clear whether a counterclaim is compulsory, CR 13(b) permits the counterclaim to be pleaded, and there is no penalty for doing so.

File a reply to a counterclaim. A reply is not optional under CR 7(a). Failure to deny an allegation in a counterclaim constitutes an admission under CR 8(d). See Jansen v. Nu-West, Inc., 102 Wn.App. 432, 6 P.3d 98 (2000), review denied, 143 Wn.2d 1006 (2001).

In cases in which both plaintiff and defendant sustain damages in connection with a single transaction or occurrence (including personal injury cases), and each party may be partially at fault, a counterclaim probably should be asserted. The plaintiff's liability...