I like to say that it’s my job to learn your language, not your job to learn mine. But there is some common lingo used broadly negotiations, by lawyers and businesspeople alike. You are probably better off learning and using that lingo than relying on me to translate for you, especially on all calls.
There isn’t any standard or official dictionary of these terms. But the following reflects consistent usage I’ve seen in negotiations, usually among American or British lawyers.
- All Call
a phone call where both lawyers and businesspeople for both sides get invited
Compare lawyers call.
- Balanced Call
an all call where each side has both a lawyer and a businessperson present
Compare unbalanced call.
- Clean Copy
a document of a turn with all proposed changes accepted and all comments removed
- Closed Issue
a term of a deal on which both sides have come to a common understanding
Contrast open issue.
- Closing Binder
for complex transactions involving many definitive agreements or other documents, an organized set of all file copies
Some lawyers still physically print and bind closing binders. But ever more often, these are just big PDF files or ZIP archives.
- Definitive Agreement
the written agreement that both sides will sign when the deal is done
Contrast term sheet.
an agreement or form of agreement attached to a definitive agreement
- a voting agreement attached to a stock purchase agreement
- a form of stock purchase agreement attached to a stock option grant
Some lawyers use “exhibit” and “schedule” more or less interchangeably.
- File Copy
the final copy of a definitive agreement with signatures from both sides
File copies are the primary evidence both sides keep that a contract was made, in case they need to enforce their contract.
- Initial Proposal or First Draft
the first turn in a negotiation
- Internal Comment
a comment to a document intended only for people on the same side, not the other side or opposing counsel
- Issues List
a list of open issues from one side or the other
- Lawyers Call
a phone call where only the lawyers for each side get invited, not the businesspeople
Compare all call.
- Open Issue
a term of a deal on which both sides have not yet come to a common understanding
Contrast closed issue.
- Opposing Counsel
the lawyers representing the other side in a negotiation
figurative concept for form agreements and other documents
- “We’re happy to start from your paper.” means “We’re open to you preparing the initial proposal using your company’s forms.”
- “Their paper likely isn’t anything but bad for us.” means “Their forms likely favor their interests strongly over ours.”
a documented set of changes that negotiators are authorized to make, and the conditions under which they can offer them
Businesses with organized sales teams sometimes prepare playbooks to regulate how their salespeople can negotiate deals on their paper.
- Redline or Blackline
a document of a turn formatted to show the changes made to the last turn
Akin to a diff in computer programming.
Lawyers typically use Microsoft Word’s Track Changes or Compare Document functions, or a purpose-built legal comparison program, some of which output PDFs rather than Word files.
- Reserve for Comment
language called out in a turn for comment in a later turn
Negotiators often reserve comment when they aren’t yet sure if they can accept proposed language, or when they need more information or approvals from others. Somtimes negotiators reserve comment tactically, to avoid revealing their view or distract from other issues.
- Retrading or Reneging
going back on issues that were considered closed, or sending a turn with edits to settled language not connected to any open issue.
Retrading is looked down upon, and often results in reduced trust between negotiating parties.
a document attached to a definitive agreement
Some lawyers use “schedule” and “exhibit” more or less interchangeably.
- Settled Language
language in a definitive agreement that one side proposed in a turn and the other side did not either change in their next turn or reserve for comment.
- Signature Proposal
a turn with all outstanding issues resolved that a party proposes as ready sign
- Term Sheet or Letter of Intent or Memorandum of Understanding
a short document, prepared before any definitive agreement that outlines the major terms of a tranaction
Term sheets are faster to write, easier to change, and friendlier to hands-on work by businesspeople, and not just lawyers. They can help to pin down the most important terms of a negotiation ahead of time, and create a record each side can point back to if the other tries to retrade.
Term sheets are not usually binding contracts. However, in some kinds of deals, like venture capital financings, term sheets may combine non-binding outlines of terms with binding exclusivity agreements.
- The Pen
figurative concept for which side will take the next turn
- “You have the pen.” means “Your side will take the next turn.”
- “If you’re alright with us going out of order, we will take back the pen.” means “If you approve, we will take the next turn, even though we took the last turn.
- Turn or Markup
a set of documents showing proposed changes to a definitive agreement and any related documents
After the initial proposal, each turn usually includes a clean copy and redline of each document with proposed changes, plus any comments included in the e-mail or other messages sending them.
- Unbalanced Call
an all call where one side lacks either a lawyer or a businessperson on the line
In general, according to the ethical rules for the practice of law, lawyers shouldn’t speak to people they know have their own lawyers without those lawyers present.