On November 18, 2023, Derek Romberg, Marc Bisogno, Steven Donofrio, and I (Colin Savino) competed on behalf of Haub Law Advocacy in the ABA Arbitration Competition regionals. We were coached by Kristen Mogavero. We thank her for all her time working with us to prepare for the competition and encouragement throughout the competition day!
In the regional competition, each team competes against one opponent as the claimant and against another as the respondent. Of the teams who win against both respective opponents, the four who receive the highest score differentials from the judges advance to the semifinals the next day.
Every year, the ABA Arbitration Competition’s fact pattern incorporates a different practice area for the teams to argue. This year, the fact pattern was about products liability. Claimant was a fictional basketball team, and Respondent was a fictional gym equipment distribution company. Claimant alleged that a professional basketball player they employed suffered a career-altering wrist injury when the exercise ball he was doing dumbbell chest presses on burst due to defect. Respondent supplied the exercise ball as part of a contract with Claimant overhauling their 10,000 gym. As a result of the injury, Claimant paid the remainder of the player’s salary in compliance with their league’s rules. The team also paid the player’s medical bills, though the fictional jurisdiction notably had no precedent implicating the team for such costs as a product liability Claimant.
Claimant’s action was based in strict liability and negligence product liability claims. The case file provided the elements a claimant must prove for each of these variations of product liability based on law in the fictional jurisdiction. The case file also provided the Purchase Agreement, the injured player’s affidavit, photos of the ball’s packaging, and summaries of the witness’ depositions.
Claimant’s witnesses were an athletic trainer who was present at the accident, as well as the team’s owner. Both of their summaries described how Respondent did not properly remove packing materials such as staples, which may have punctured the ball. They also recounted how neither Respondent’s sales representative, nor the product packaging properly explained any danger associated with improperly inflating the ball.
Respondent’s witnesses were the sales rep who helped deliver the products Claimant ordered, and the owner of Respondent equipment distribution company. Both of their summaries described an unreasonably short timeline Claimant set for them to complete the job, and that Claimant did not follow safety instructions on the ball’s packaging.
In our first preliminary round, we acted as the Respondent equipment distribution company. We argued Claimant should not recover because their management created the conditions that led to the player’s injury. Claimant waited until the season started and only provided one day while the team was at an away game for Respondent to overhaul the gym. In turn, the management did not allow the athletic training staff time to familiarize themselves with new equipment, so they could not possibly have maximized their ability to ensure the players’ safety. This was aggravated by the fact that the witness athletic trainer admitted to not reading the directions for how to inflate the ball, and was not spotting the player while he lifted weights on the ball. We also argued Claimants were reasonable in selling the ball in question because no new ball from the manufacturer they ordered from had ever burst. As a result, we argued the ball burst due to user error and detailed the jurisdiction’s law to reduce any damages under pure comparative negligence.
In our second preliminary round, we acted as the Claimant basketball team. We argued that the Respondent did not take reasonable measures to ensure users properly inflated the ball or of dangers of improper inflation. First, we discussed the product packaging. The directions for how to inflate the ball were not immediately apparent, as they were inside the box. Further, the directions never used words such as “warning,” “danger,” or “caution”: they merely used the word “may” to suggest a possible way to inflate the ball. Here, we attempted to defeat Respondent’s theory that the ball burst because Claimant did not follow product directions and used it improperly. Further, we showed that Respondent’s sales rep usually warned customers to supplement the packaging but did not in the sale at issue. However, we avoided arguing that staples Respondent left on the floor caused the burst, because that would inherently exclude the possibility of defect. Ultimately, the negligence claim in the fact pattern was for negligent sale of a defective product, not for negligence in Respondent’s services in delivering the new equipment and unboxing it.
Though we scored 8th out of 16 and did not advance, we gained valuable feedback from the judges after each preliminary round. We also had the opportunity to listen to the judges’ feedback to our in round opponents. The most valuable takeaways I gathered were to know your audience, and that not everything objectionable should be objected to. Knowing your audience in arbitration is critical because arbitrators are often experienced in the practice area they arbitrate. In turn, background information is less valuable to an arbitrator than to a jury at trial. Similarly, arbitrators are more likely to overrule objections than judges. This is because the arbitrator has more experience designating weight to evidence than a jury. In turn, it is critical not to dilute the value of clear objections with ones which may be less convincing.