Scott Steinberg · Consultant, Analyst and Business Strategist
Commercial agreements often leave enormous amounts unstated because the parties assumed the trade would fill the gaps. When a dispute arrives, someone has to establish what those assumptions actually were. A consultant to 3000+ organizations across sample sectors like technology, marketing, media and consumer product, Scott Steinberg supplies that industry insight and more.
Expert reports, declarations, deposition and trial testimony on trade custom and usage, performance and deliverable standards, commercial reasonableness, scope interpretation, industry norms across agreements and more!
Expert witnesses to offer opinions, testimony and consulting on contracts, industry practices and more.
Agreements in every industry rest on a layer of shared assumption that never reaches the page because everyone in the trade already knows it.
Testimony establishes what that customary understanding was in the relevant sector and period, drawn from comparable agreements, industry documentation and prevailing practice.
Where an agreement calls for professional services or a built deliverable, the question is what a competent provider in that field would have produced.
Testimony establishes the standard for engagements of that type, size and fee, and compares what was delivered against it.
Scope disputes turn on what a specification would have meant to practitioners rather than on dictionary readings of the words.
Testimony addresses how such specifications are customarily written and understood in the trade, and what a provider would reasonably have taken the scope to include.
Where an agreement or a course of conduct is measured against reasonableness, the benchmark is what comparable commercial parties actually do.
Testimony supplies that benchmark for the specific decision at issue, whether pricing, timing, notice or a response to changed circumstances.
Service agreements carry definitional questions about what counted, when clocks ran and how exclusions applied that determine whether performance was met.
Testimony addresses how such terms are customarily defined and measured in the sector and whether reported performance reflected the contractual definition.
Project disputes involve who caused delay, how change requests were handled, whether scope crept without documentation and what each party owed at each stage.
Testimony addresses project management practice in the sector and what the record shows about responsibility for schedule movement.
End-of-relationship disputes concern notice, transition assistance, work product handover, outstanding payment and what obligations survived.
Testimony addresses wind-down convention in the trade and whether the conduct at issue departed from it.
Where a party is said to have failed to mitigate, the question is what alternatives were realistically available, at what cost and on what timeline.
Testimony addresses market conditions and replacement options in the sector, supplying inputs a damages expert builds on.
Establishing trade custom could involve evidence about what comparable parties routinely do, assembled from agreements, industry documentation and market practice. Any party may instruct.
Written opinions on areas like trade custom, performance standards and whether delivery met industry expectations.
Testimony on what parties in that trade customarily do, which agreements assume and rarely state, etc.
Responsive analysis of custom assertions and characterizations of reasonable commercial performance.
Non-testifying assembly of trade practice evidence and assessment of deliverable adequacy.
Scott Steinberg is an analyst, consultant and business trends expert with over 25 years of experience providing management and strategic consulting services to more than 3,000 businesses and brands ranging from startups to government agencies and Fortune 500 firms.
He has testified in sample areas including intellectual property — copyrights, trademarks and patents — patent infringement, marketing, branding, video games, mobile applications, consumer product development, and the growth and monetization of online distribution platforms.
He is the author of over 30 books and has published more than five thousand articles addressing areas including but not limited to marketing, technology, leadership, innovation, advertising, digital transformation, data privacy and social networks. He appears regularly on ABC, CBS, CNN and NBC, and has led seminars and training programs for organizations including Wells Fargo, the PGA Tour, Century 21, Ford, Dell and Procter & Gamble.
His consulting work has been broadly recognized. He has served as a thought leader for the American Bar Association and Corporate Counsel magazine, and has received honors from the International Association for Scholastic Excellence, Fortune, and the 21st Century Icon Awards, among others.
The commercial layer that agreements assume rather than state: what the trade customarily understood a term to mean, what a competent provider would have delivered, what performance the sector expected, and whether conduct was commercially reasonable. Interpretation of the contract itself remains for the court.
Generally not as a legal matter. What testimony typically suppies is how practitioners in the field would have read a specification or term, which is a factual question about trade usage rather than a legal conclusion about the agreement's meaning.
All: Technology and software, marketing and advertising services, media and content, consumer products, digital and platform agreements, etc. You'll often find sectors where the practice is well documented and the expert can speak to what parties routinely do.
No. Damages quantification is separate work. This practice supplies inputs that quantification rests on, including what replacement would have cost, what alternatives existed and what performance the market expected.
Generally from items like comparable agreements in the sector, industry documentation and standard forms, published guidance from trade bodies, and evidence of what parties in that market routinely do. It is assembled evidence rather than assertion, which is what makes it usable.
Initial conversations about scope, timing and conflicts are without charge. Helpful detail includes the industry, the agreement type and the performance at issue, plus any expert disclosure deadline already set.
A conflicts check is run before any substantive discussion. An initial note listing the party names and a one-line description of the dispute is enough to start; please hold privileged or confidential material until the check clears.