Let’s go straight to docs

A statement only a private practice lawyer would say, usually as a reaction to a perceived lack of time or resources.

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“Oh cripes that time line is hyper-aggressive, and this could all go totally pear-shaped. We don’t have time for a term-sheet; let’s just crack on and go straight to docs.”

Look: if you are doing something easy and homogenous like an NDA, maybe there is some sense in that — though none in engaging a private practice lawyer to do an NDA in the first place, of course. (What are you? Mad? Go OneNDA!)

In any situation where engaging external counsel does make sense, then dispensing with a termsheet is a charter for utter disaster. The main commercial points of any arrangement are generally few, easily articulated, and well-suited to clipped adumbration in a table: like a termsheet. They can, then, be attacked, haggled over, articulated, refined, and beaten to a fine copper plate in the abstract, by the business principles, quickly and without ceremony. They can arrive at agreed terms without incurring legal expense. By this stage, the heat has gone out of the negotiation: the principles are done, the principles just want to get on with it. Each will, therefore, urge its own counsel on with the following words:

“Look, just get on with it, would you? I don’t want to mess around here. I am not paying for you to wordsmith. Make sure the termsheet is adequately reflected, we haven 't missed anything obvious, but otherwise do not dilly dally.”

This will disappoint most legal eagles — they like to be the main event — but still it must be the most effective critical path. Starting, instead, with a trust indenture that — we hope, pray and trust, but cannot know — has all those elements integrated into it, but dispersed randomly throughout it, cannot be as quick. Any legal eagle who catches sight of an indemnity — however ill-judged, or insignificant, or uncalled-for — will be drawn to it, like a moth to a lamp and she will have to address it. To hell with the main commercial terms. This existential risk must be addressed.

And so it will carry on the legal eagles will get waylaid with every hold harmless, and typo, and representation, and they may never make it to the commercial ter,ms. They may never even find them. Most likely they will never even know what they are.

A good termsheet is a discipline: a cocktail napkin; the contextualised essence of whatever the turgid entropic mass of final verbiage will, in its perverse and circuitous manner of expressing itself, eventually reflect.

See also

• Private practice lawyer