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You work somewhere for 20 years. You quit. All of a sudden, you’re not sure the joint was that good, after all.
You work somewhere for 20 years. They fire you. All of a sudden, you’re absolutely sure the place was terrible all along.
The basis of some counterclaims is obvious: Maybe you actually wronged the other party. That would be a good reason for the other party to sue you.
Or maybe you have a 100-page, single-spaced contract, and both parties are obligated to do many things for the other. If you sue them, they’ll sue you back. That’s the way it works.
But human nature may reveal the less obvious bases for counterclaims.
Fire someone.
All of a sudden, that person is likely to realize that your joint engaged in rampant discrimination against the former employee’s protected class.
Fire someone.
If the person isn’t a member of a protected class, then the person will suddenly realize that people at your joint routinely violated the law, or breached the rules of ethics, or otherwise acted improperly.
It really doesn’t matter that the employee never mentioned ethics problems during the 20 years they worked for you.
I’m not talking about reality here; I’m talking about human nature.
File a collection action.
You’re about to get sued for malpractice.
I don’t care if the client seemed happy during your five-year retention. The client is about to become very unhappy with the work you did.
I’m not limiting my analysis to individuals. Have a corporation decide to eliminate someone’s job as a result of a reorganization. All of a sudden, everyone will start criticizing the eliminated employee’s performance. It doesn’t matter that this is a position elimination, and performance is irrelevant. It doesn’t matter that the employee always received a performance rating of “3,” suggesting that the employee’s performance was satisfactory. If the employee’s position has been eliminated, then the employee was no good. It’s human nature.
Consider the partner who leaves your law firm and goes to work for a competitor. Before the office door has swung shut, your colleagues will be scoffing: “Jarndyce — he was never any good anyway. I’m delighted he left.” (Others may be silently thinking: “Gee, I’m old enough to remember when Jarndyce was a good lawyer.” But they’ll never have the courage to speak up.)
When you’re considering the possibility of counterclaims, think about human nature.
Some counterclaims are based on the law, but many are based on primal instincts. Either way, you’ll have to pay for your defense.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.