Despite their value in multi-party litigation, crossclaims are often overlooked. This article explores why crossclaims may be underused and how strategic deployment can reshape the dynamics of modern civil litigation.

Crossclaims—claims asserted by one defendant against a co-defendant—offer a powerful procedural tool for allocating responsibility, streamlining litigation, and reducing duplicative lawsuits. Yet, many litigators either overlook or underutilize this mechanism in complex civil cases. Whether due to strategic caution, lack of awareness, or perceived procedural hurdles, the omission of crossclaims may lead to missed opportunities for defense coordination, settlement leverage, and judicial efficiency.

This article explores the potential reasons behind the underuse of crossclaims, highlights the practical advantages of using them more frequently, and offers recommendations for how attorneys can incorporate them more strategically in civil litigation.

1. Why Aren’t Crossclaims Used More Often?

✅ Key reasons for underutilization:

1. Perceived Risk of Escalating Conflict:
   Some attorneys avoid crossclaims out of concern they will inflame tensions among co-defendants and undermine collective defense strategies.

2. Lack of Familiarity Among Junior Litigators:
   Less experienced attorneys may be unfamiliar with the procedural value of crossclaims or unsure how to deploy them effectively without derailing the main litigation goals.

3. Concerns Over Complexity and Cost:
   Crossclaims add additional layers of pleading, discovery, and potential evidentiary disputes. In cases where the value of the crossclaim is modest, parties may deem the cost unjustifiable.

4. Overreliance on Counterclaims and Third-Party Complaints:
   Some attorneys default to counterclaims or third-party complaints, not realizing a crossclaim might offer a more procedurally appropriate or strategic path within multi-defendant scenarios.

Example:
“In a construction defect lawsuit with several subcontractors named as co-defendants, parties may avoid filing crossclaims to preserve cooperation—missing a critical chance to formally assign blame.”
🎯 Tip: Use early strategy sessions to identify whether any party shares potential liability and whether a crossclaim could shift or mitigate exposure.

2. Benefits of Using Crossclaims More Proactively

✅ Advantages to making crossclaims part of your litigation toolbox:

1. Clarify Liability Early:
   Crossclaims help delineate responsibilities between defendants, preventing finger-pointing at trial and clarifying issues for the judge or jury.

2. Enhance Settlement Leverage:
   Crossclaims can increase pressure on co-defendants to contribute meaningfully to settlements, especially when one party is clearly more culpable.

3. Prevent Separate Litigation:
   Filing a crossclaim avoids the need for a separate lawsuit later, which could arise under indemnity, breach of contract, or contribution theories.

4. Preserve Legal Theories for Trial:
   Even if a crossclaim is not aggressively pursued during discovery, asserting it early ensures that a defense theory is preserved for summary judgment or trial.

Example:
“If a retailer is sued alongside a product manufacturer, the retailer may file a crossclaim for indemnity—ensuring the jury understands it played no role in the design defect.”
🎯 Tip: Crossclaims aren’t just about assigning blame—they can be powerful tools to preserve your client’s reputation and protect financial interests.

3. Practice Areas Where Crossclaims Are Most Underused

✅ Litigation contexts ripe for better crossclaim use:

• Employment Litigation:
  In harassment or retaliation cases involving multiple managers, crossclaims can clarify who was truly involved and why.

• Real Estate Disputes:
  In landlord-tenant conflicts or commercial lease disputes, crossclaims can shift blame to contractors, property managers, or co-owners.

• Healthcare & Medical Malpractice:
  Hospitals, physicians, and outsourced vendors often share responsibility, yet formal crossclaims are often missing from the pleadings.

• Cybersecurity Breaches:
  As covered in Article 40, entities rarely file crossclaims against IT vendors despite shared culpability.

Example:
“In a wrongful termination lawsuit, if a manager and HR officer are named together, failing to crossclaim could leave one bearing the brunt of liability at trial.”
🎯 Tip: Reassess your pleadings in multi-defendant cases—if co-defendants’ interests diverge, crossclaims may be more than justified.

4. Obstacles Preventing Broader Crossclaim Use—and How to Overcome Them

✅ Practical and cultural barriers to wider crossclaim adoption:

1. Reluctance to Break Defense Unity:
   Lawyers fear that filing a crossclaim may damage a unified defense strategy, particularly during early litigation.

2. Uncertainty About Strategic Timing:
   Waiting too long can lead to waiver or procedural challenges. Filing too early can appear aggressive.

3. Misconceptions About Permissibility:
   Some attorneys mistakenly believe crossclaims can only be filed under narrow conditions, when civil procedure rules allow them more broadly.

4. Judicial Skepticism of Tactical Crossclaims:
   Courts may scrutinize crossclaims that appear retaliatory or that unnecessarily complicate proceedings.

Example:
“A crossclaim filed mid-discovery without evidentiary support may be dismissed as dilatory, even if meritorious.”
🎯 Tip: Time your crossclaim to align with your litigation roadmap—ideally soon after responsive pleadings and with supporting facts.

5. Sample Scenario: Missed Opportunity for a Crossclaim

Scenario:
In a commercial dispute, a tenant sues both a property manager and building owner for mold exposure. The manager blames the owner, and the owner blames the tenant for poor housekeeping. No crossclaims are filed.

Outcome:
At trial, the jury is left to untangle competing narratives with no formal apportionment between defendants. The court awards joint and several liability.

🎯 Tip: If either defendant had filed a crossclaim for contribution or indemnity, the court could have allocated fault more precisely—avoiding a full damages award against both.

Final Thoughts

Crossclaims remain an underutilized asset in civil litigation. When thoughtfully deployed, they can streamline complex disputes, preserve strategic defenses, and enhance outcomes for clients. Attorneys who routinely assess crossclaim opportunities—especially in multi-defendant cases—will be better positioned to control the litigation narrative and reduce future exposure.

Let Legal Husk Help You Strategically Deploy Crossclaims
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