When to Fight Back with a Counterclaim

Claims Alleged:         False Imprisonment; Assault and Battery; and Intentional Infliction of Emotional Distress

Injuries Alleged:       Concussion; Nasal Fracture; Facial Contusions and Abrasions; and Emotional Distress

Admitted Liability:    No

Amount Claimed:       $995,000

The Overview:

Managing Partner at Smith Freed Eberhard, Jeff Eberhard, successfully defended an individual against claims of assault and battery, false imprisonment and intentional infliction of emotional distress. Smith Freed Eberhard strategically counterclaimed against the plaintiff by using an Oregon Statute, ORS 20.080 to request attorney fees for pursuing the counterclaim. This effective use of a counterclaim resulted in the plaintiff stipulating to a dismissal of the case.

The Background:

According to the plaintiff, the defendant, represented by Jeff Eberhard, and four other individuals physically assaulted him and then left him injured in a remote location to die. Plaintiff claimed this incident resulted in not only significant physical injuries, but also emotional distress. The plaintiff sued our client plus four other individuals who were present, and multiple other parties, including the business the group had been at earlier that night and multiple law enforcement officials. The claims brought against the defendant represented by Smith Freed Eberhard were false imprisonment, assault and battery, and intentional infliction of emotional distress.

Notably, our client sustained multiple lacerations to his neck. However, the plaintiff claimed he did not know how our client had gotten this injury. Additionally, the plaintiff alleged that our client, and the four other individuals, attempted to frame the plaintiff for the neck injury by calling 911 on the plaintiff’s phone, impersonating the plaintiff, and claiming, as the plaintiff, to have caused the injury.

Plaintiffs Theme:

Plaintiff’s strategy was to insist on a course of events that portrayed our client and the four other defendants as a group of friends who intentionally physically assaulted the plaintiff for no reason and then left him to die in a remote location. The plaintiff’s narration of events also alleged our client and others tried to frame him for the injuries to our client’s neck. Ultimately, the plaintiff’s case relied on the idea that our client, plus the others involved, were out to get the plaintiff that night and the group unprovokedly beat up the plaintiff.

Our Strategy:

After interviewing our client and getting his story of what occurred that evening, Jeff knew that if there was evidence that corroborated our client’s timeline of events, they would have an effective counterclaim against the plaintiff for assault and battery. According to our client, the plaintiff came up behind him, unprovoked, and used a pocketknife to slice across his neck. Our client and one other individual quickly got into a vehicle to drive to the hospital. While our client was on his way to the hospital, it appears that the plaintiff may have sustained some injuries; however, our client was not present for this.

After getting records from involved law enforcement agencies, there was enough evidence to support our understanding of the events. Police statements confirmed that our client and the woman who drove him to get medical attention arrived at the hospital prior to the rest of the group. This corroborated that our client had left the scene to get medical attention quickly after being injured while the rest of the group did not leave until sometime later.

With our client’s story being corroborated by other evidence, Jeff was left with the decision to simply answer the plaintiff’s complaint, raising relevant affirmative defenses, or to also strategically counterclaim against the plaintiff for his actions that night.

The Outcome:

With our client’s timeline of events reasonably corroborated by evidence, Jeff, with the consent of the client, made the decision to counterclaim against the plaintiff. The counterclaim was for intentional assault and battery, seeking to recover medical expenses under $10,000, as well as attorney fees, pursuant to ORS 20.080. The counterclaim was strategic because it would allow for more bargaining power in negotiations as the litigation continued; i.e. as attorney fees increased, so would plaintiff’s monetary exposure. However, the counterclaim had even more bargaining power than that. Shortly after Jeff filed the counterclaim, the plaintiff’s attorney reached out to stipulate a dismissal of the case against our client, which Jeff agreed to, ultimately resolving the case. The moral of the story: sometimes it pays to fight back —- with a counterclaim.

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