Counterclaims may be made at any time in the proceeding but are not compulsory. If necessary, a defendant in counterclaim may be permitted additional time to prepare for trial.
Commentary
A defendant may raise any counterclaim against the plaintiff that is within the small claim procedure's jurisdiction. Uniform Small Claims Rule 3(c) defines a counterclaim very broadly as "any claim which [the defendant] has against the plaintiff" and therefore a small claims counterclaim need not arise out of the same incident as the original claim. Although under Rule 3 counterclaims are not compulsory, the court should accept all counterclaims from the same incident before or at the trial of the original claim, so that all matters arising from the same incident may be adjudicated at one time. A defendant should be informed that by bringing a counterclaim in the small claims session, he or she waives the right to a subsequent jury or bench trial with respect to that counterclaim.
Rule 3 requires that a counterclaim be set forth in writing, but specifically permits a defendant to do so at any time during the course of the proceedings. A defendant should not be required to file a counterclaim on a separate Statement of Small Claim and Notice of Trial form as if it were a separate claim. The defendant may file the counterclaim within his or her answer to the original claim or may write a separate letter to the court stating the counterclaim.
Rule 3 does not require that an answer or counterclaim be served upon the plaintiff, but it does provide that "the plaintiff’s claim and the defendant’s claim shall be deemed one case if the defendant mails notice of his claim to the plaintiff at least ten days in advance." As the rule permits the defendant to file a counterclaim in writing during the course of the proceedings, failure to serve a counterclaim before the trial date should not be automatic grounds for granting the plaintiff a continuance unless the plaintiff is genuinely surprised by the counterclaim at trial to the extent that he or she is prejudiced in his or her presentation. In general, if court personnel are in communication with the defendant, they should point out the importance of giving the plaintiff notice of the answer and/or counterclaim. If the defendant requests the court to do so, the court should mail the answer and/or counterclaim to the plaintiff at no cost to the defendant. The court should always permit the plaintiff to read or photocopy an answer or counterclaim filed by the defendant.