The Problem with “Standard” Term Sheets (including YC’s)

TL;DR: Whenever an influential organization publishes a “standard” financing document, important questions need to be asked about not just its specific terms, but also the entire concept of “standard” terms in general, and potential biases in their creation. In YC’s case, their decision to keep their “standard” TS very short (for speed purposes), and not address key economic/control issues, favors investors by deferring negotiation on those issues to a context (after signing) where common stockholders have less flexibility and leverage. YC’s default terms also give VCs substantial power that is hardly a “standard.” In the broader context (apart from YC), there are serious problems emerging in the startup legal market with how certain narratives around “standards”, closing fast, and the hiring of lawyers with deep conflicts of interest, are leading (and tricking) entrepreneurs & early employees into adopting legal strategies that hurt their long-term interests.

In Startup Law and financing, standardization and templates are often celebrated as noble, generous attempts at saving entrepreneurs money that they would otherwise “waste” on advisory fees. While it is definitely true that, to a point, creating uniform language improves efficiency, there are very real, and often dangerous, high-stakes issues that founders need to hear about regarding “standards,” but unfortunately they often don’t.

Take Y Combinator’s recent “Standard and Clean” Series A Term Sheet as just one example. YC has placed itself at the forefront of attempting to standardize early-stage fundraising docs for startups.  The SAFE (Simple Agreement for Future Equity) has become in Silicon Valley a dominant instrument for seed fundraising, though survey data (and our experience) suggests it’s not nearly as dominant outside of California.

Given that the SAFE was, relative to other instruments used in the market (like convertible notes) a quite company-friendly agreement, YC established itself as offering very “founder friendly” standards in templates they create.  So one would’ve expected that their “Standard and Clean” term sheet would follow the same trajectory. However, when we reviewed YC’s term sheet, our initial response – as lawyers who represent companies, and only companies (not their investors) – was “Uh oh.”

Short term sheets benefit investors

First, YC’s term sheet is remarkably short as far as equity term sheets go. The reason is somewhat reflected in their own blog post’s words:

“So don’t lose sight of the ultimate goal: closing fast and getting back to work.”

Short term sheets get signed faster than longer ones, because there’s less to discuss. Here’s the problem with short term sheets, though: once you sign a term sheet, two things happen:

A. You are now locked in with a “no shop” clause. That requires you to inform any other investors you were talking to that you are taking someone else’s deal. Good luck going back to them if this deal ends up not closing.

B. You start racking up legal fees with your own lawyers, which for a cash-limited startup puts pressure to close, and accept terms on the table, in order to pay those fees.

In other words, once you sign a term sheet, your leverage and flexibility dramatically go down. It becomes far easier for investors to pressure you with this or that language (which they will usually claim is also “standard”) than it would’ve been during the term sheet phase. So rushing to sign a short term sheet favors investors over startups.  Slowing down and clarifying all material points at the term sheet phase also saves legal fees, because it reduces back-and-forth with the lengthier definitive documents.

Fair enough, you might say. YC favors moving fast anyway, because there can be benefits to moving fast for everyone. OK.

YC gives VCs full veto rights on equity financings

Here’s a second issue: as drafted, YC’s “standard and clean” terms give your VCs and other investors a complete veto right over all future equity financings, regardless of what the Board composition is. In other words, even if the common stock controls the Board (which shouldn’t necessarily be the case), and has a deal on the table with great terms, your VCs can block it simply because they, for whatever self-interested reason, don’t like it.

This is usually a point at which at least a few founders might be thinking “WTF?”

When you move to close an equity financing, there are at least two approvals that need to happen: Board and Stockholder votes. The Board vote is subject to fiduciary duties, but the stockholder vote isn’t, save for a few narrow circumstances. In a stockholder vote, you can block something for whatever reason you want, effectively. Yes, we have seen VCs block deals that common stockholders wanted, and with great terms; but because the VCs had self-interested reasons for favoring another deal, they refused to approve. This can give them remarkable power over what deals get done and don’t.

To be fair, YC points out this hard veto right in their blog post’s footnotes. Putting aside the fact that those footnotes won’t make it into a redline, probably their expectation is that good startup lawyers will always mention the issue to their clients, and negotiate if possible. In other words, their “standard” perhaps isn’t as big of a problem because it will be negotiated. And that brings us to a more important point in this post, which isn’t about YC specifically, but the entire concept of “standard” terms.

What is “standard”?

What exactly do we mean when we say something is “standard”? Whose data are we using?

Given that investors are on one side of a deal, and entrepreneurs (and other employees) on another, might we be a little cautious in letting investors be the ones telling the market what the “standards” are?

When YC, with its prominent brand, places the label of “standard” on giving VCs unilateral veto rights on future financings, that influences the market, even if unintentionally, in favor of VCs. Now lawyers representing the interests of startups/common stockholders (like us) have to negotiate not just with investors across the table, but against a now so-called “standard.”

We’ve closed many, many deals where we don’t give VCs this kind of broad veto right, and soften it significantly to make it more balanced. But now when we push back on giving VC’s these veto rights, their response is going to be: “Look at YC’s term sheet. Giving us a hard veto is the market standard.”

Which leads to another question: what is the appropriate threshold for something becoming “standard”? 75%? More than 50%? If 49% of deals don’t have a provision, or even 10%, there are good arguments that there are in fact multiple “standards.” But when some “standards” favor repeat players with microphones and dominance over startup ecosystems, while other “standards” favor “one shot” players (like first-time entrepreneurs and employees), which ones do you think get publicized? Taking a 75% standard, as an example, and then prominently publicizing it as the “standard” can be a way to move the market to 100%, with “efficiency” as a weak excuse for eliminating flexibility on such a high-stakes provision.

Even if we had perfect objective data, at what point should startups place more weight on their own priorities, unique context, and leverage for the permanent, highest-stakes economic and power terms of their company’s governance, instead of aggregated, anonymized data covering a huge diversity of companies?

One could argue that the publication by investors of their own so-called “standards” is a kind of assertion of market power, and a way to influence long-term the data that is then used to justify those same standards. Do common stockholders have the ability to do the same and ensure balance? No, they don’t. They depend on individual lawyers to represent their interests and help make up for the power inequality. And that finally brings us to an even bigger problem.

The “own the advisors” game.

Let us paint a picture of a “game” of sorts for you. The game has two broad sets of players: “one shot” players and repeat players.

The “one shot” players are first-time entrepreneurs and early employees; common stockholders. They are usually not diversified, which means their wealth is concentrated in their one company. They also typically lack significant personal wealth, and don’t have downside protection on their equity, further magnifying their “skin” in this “one shot” that they have. Finally, not having played the game before, they rely on experienced, trusted (hopefully) outside advisors (like lawyers) to help them not get taken advantage of.

The “repeat players” (investors, accelerators) are in the polar opposite situation. They are wealthy, diversified, downside protected (liquidation preference or a debt claim), and they’ve played the game many, many times. In the case of the largest repeat players, they’re also incentivized to take significant risks in order to “swing for the fences” and go after risky big prizes, even if doing so increases the number of total failures; failures which hit the one shot players far harder because they aren’t diversified across a portfolio juiced for “power law” returns.

There is a fundamental misalignment here that never goes away, and feeds into many high-stakes decisions (and disagreements) in a company’s history around recruiting, risk, fundraising, exits, etc. Both sides want to make money, but they are often misaligned in their perspectives on how to do so, whom to raise funding from (and on what terms), and what level of risk is acceptable. The repeat players have 100x the experience of the one shot players, but the one shot players hope their advisors can help “balance” the inequality as they navigate this misalignment.

Now, let’s say I’m a very smart repeat player – a “chess player” of sorts – and I’d prefer that this “balancing” not really happen. I make more money, and keep more control, if I can somehow get in the way of the lawyers helping the one shot players. But at the same time, if I look too visibly aggressive in doing so, the one shot players won’t want to play with me at all. So as an investor I want to win, but in a way that preserves a public image of selflessness so that inexperienced players keep coming to me, and preferably with minimal defenses. What’s a good multi-step strategy?

Here’s a suggestion.

1. Create “standards” for the game, based on limited data, and with microphones, that the one shot players can’t see or influence. Publish these so-called “standards” while emphasizing how much money they’ll “save” everyone by using them. Talk a bit about how you were once yourself a one shot player (former entrepreneur), so you’re really doing this out of selfless empathy for the new folks; even if now you’re highly misaligned.

2. Build relationships with lawyers that the one shot players hire for advice, by hiring those same firms on the much larger volume of deals you control, and also referring other people to them from your broad network as a repeat player. This ability to refer lots of work to said lawyers is a “currency” that the inexperienced one shot players always lack.

3. Recommend to the one shot players that they hire these same awesome lawyers that you (the repeat player) prefer, because of how “efficient” and “high quality” they are, and how well they know the “standards.” You know that those lawyers view you as a source of 50x as much “deal flow” as any one shot player, and would never do anything to jeopardize that deal flow. Emphasize how much money will be “saved” by using “familiar” lawyers.

4. Tell the one shot players that, given everything is “standard” anyway, they should focus on “closing fast” and saving fees. In fact, they should hire the lawyers on a flat fee, which ensures that the faster the lawyers move (the less time they spend advising the inexperienced startup and negotiating on its behalf), the more money those lawyers make. You can have two sets of lawyers who charge the exact same end-price, but those charging a “flat fee” (as opposed to billing by time worked) are actually rewarded for doing less work, with an improved margin.

5. With the “standard” (that repeat players created) in hand, the lawyers (that repeat players control) “close fast” (earning a better margin on their flat fee), with minimal discussion or negotiation, so everyone can move on and not “waste money” on unnecessary advisory.

6. The repeat players, very happy with how “high quality” and “efficient” the captive lawyers were at closing on their standard, refer them more work; regardless of how well it served the one shot players who, on paper, were the client.

7. Rinse and repeat over many iterations. Now we have market data that validates the “standards” that the repeat players created, further entrenching it.    

Does this game sound familiar to anyone? We bet it does to startup lawyers.

We go more in-depth into how the game is played, and strategies for avoiding it, in Relationships and Power in Startup Ecosystems and How to Avoid “Captive” Company Counsel.

The core point is this: there is a structural problem with how certain startup ecosystems have evolved to approach “legal” and the hiring of lawyers. It’s the result of a significant imbalance of power between “one shot” startups and the repeat player investors/accelerators they work with, the latter of which have found many (not all) startup lawyers quite eager to flout conflicts of interest in order to generate business for themselves.

“One shot” common stockholders (entrepreneurs, employees) and “repeat player” investors (including accelerators) are not fully aligned in terms of economics and incentives, given the above-described differences as it relates to diversification, wealth, experience, and downside protection. Repeat players, through their ability to operate as brokers/gatekeepers of referrals, have increasingly pushed founders to hire law firms that are ultimately “captive” to investors, and even then sometimes insist that those law firms adopt billing practices (like flat fees) that actually reward lawyers for rushing work and under-advising inexperienced startups. 

And all of this is done under the pretense of wanting to help founders “save” money. In this game, the appearance of “founder friendliness” is often a marketing tool to help lull first-timers into forgetting how misaligned they are from the money players, and then taking advice from those same money players that ends up, unsurprisingly, being an “own goal.” Former entrepreneurs-turned-investors are often the most skilled at using their pasts (as entrepreneurs) as smoke and mirrors to get now first-time entrepreneurs and early employees to forget their misalignment, and take their advice as gospel.

In fact, if you look around the market and find startup law practices that have grown at an abnormally fast, seemingly non-organic, pace, what you’ll often find is lawyers willing to juice this conflict of interest-driven game as far as possible, to a point getting preciously close to meriting litigation. We’ve seen at least one threatened law suit already.

We see the negative consequences of this game all the time around the country, as inexperienced “one shot” common stockholders (including entrepreneurs) are duped into signing (air quotes) “standard” deals, and taking certain “standard” actions, while having no real clue as to what the long-term consequences are because everyone was celebrating how great of an idea it is to “close fast” and keep it “standard.” When the long-term consequences of the “standard” docs and actions play out, it becomes clear no one ever actually explained to the inexperienced common stockholders and the company what the real implications were, or how they could’ve been negotiated for more balance; because everyone capable of doing so was ultimately incentivized to favor the interests of the money. 

So not only are we increasingly pushing so-called “standards” that are themselves biased and questionable, we’re depriving the most inexperienced and exposed people in the ecosystem, the new entrepreneurs and early employees, of the right to even be truly independently advised in assessing those “standards.” And we’re selling it all as noble and well-intentioned because it purportedly “saves” them fees, even if the long-term negative consequences for them far exceed whatever fees they “save.”

To be sure, not every team gets hurt by the emergent “close fast and keep it standard” dogma; in much the same way that not everyone who smokes gets cancer. Some teams manage to protect themselves in other ways, regardless of what the docs say, or are lucky to work with lawyers who fully do their job. But the issue is so pervasive, and there is enough damage occurring to inexperienced players, that it needs to be, at a minimum, discussed out in the open by people not incentivized to dismiss or downplay it.

We believe that startups are more than capable of making their own decisions as to how they want to hire advisors, including counsel, once they’ve heard the full story and potential implications. Part of the problem is how little open and honest discussion occurs on the topic, and how much market pressure to use captive lawyers is applied quietly in the background, precisely because the market is dominated by repeat player perspectives; many of which are cleverly spun and publicized as “friendly.”

Negotiating the YC “Standard and Clean” Term Sheet

To be crystal clear, this broader diagnosis of the market is not about YC at all. YC is a great organization, and many of our firm’s clients (including YC companies) have fantastic things to say about their program. We have no idea what YC’s arrangements are in terms of referring companies to certain conflicted or non-conflicted law firms, or the kinds of economic arrangements they promote with those firms. For all we know, YC legitimately believed that they could post this “standard,” and then expect truly independent, non-captive lawyers to then do their job and produce fair outcomes.

But while we have your attention, given that this “standard and clean” term sheet is already out there, a few suggestions that we would give to companies and common stockholders before signing it:

A. Soften the vetoBuild some “boundaries” around the veto right on future financings. For example, if the valuation is a certain amount above the current price (not a down round), perhaps a Board vote should be sufficient. The Board is subject to fiduciary duties, which can constrain bad actors. Maintain some kind of “path” to a value accretive financing, even if the current money gets hostile and tries to reduce competition, or force a deal with their “friends.” There should also typically be some kind of ownership threshold below which all VC vetoes go away.

B. Clarify the shadow preferred’s economicsBe clearer about the economics of the “shadow preferred” referenced for Notes/SAFEs. What are their liquidation preferences? Term sheets are a good opportunity to address any liquidation overhangs if the Notes/SAFEs themselves don’t address them.

C. Clarify the common stock’s board voting rightsDo the common stockholders have to be employees in order to vote for the common stock’s board seats? This has significant power implications long-term, because there can be any number of reasons why early common stockholders might leave the company (or be forced out), and still want a voice (even if not control) in governance; and for good reasons. When there’s a power shift, common stockholders remaining on payroll are usually far more beholden to the money, and because their equity was often issued later (at a higher price), their economics and incentives are more aligned with later investors. Make VCs explain in full just why exactly it’s so important that all common directors be service providers, or be elected by service providers, to the company. Listen closely enough, and you’ll understand how the arguments are often thinly veiled power plays.

Also, does one common director have to be the CEO? This is usually (but not always) the case. Discuss it and spell it out in the term sheet. Just like the previously mentioned point, given that the CEO position often eventually gets filled by a later common stockholder recruited by the Board, with different priorities and incentives from early common stockholders, this has control implications long-term. Again, tying common director positions (and the voting in their elections) to being on payroll is often a subtle power move to eventually exclude (as a company scales) early common stockholders from having visibility and a say in company governance; because they’re the people most likely to disagree with later-stage investors on how to scale, when to exit, and how much risk is acceptable.

Provide a “yes” or a “no” to these questions. Silence means shifting negotiation post-term sheet, where the common have less flexibility. Be mindful of how some players will spin this discussion into a caricature of founders not wanting to give up control. Control and a voice/visibility are two completely separate issues. There are many constituencies on a cap table with various incentives and interests. There are good arguments for why, as a company scales and the stakes get higher, early common stockholders – who are the most exposed to dilution and risk – should still have some say and visibility (even if not control) in company governance, to voice concerns around risk, financing strategy, recruiting, exits, etc. Conflating the narrow context of a founder unwilling to share control with the far broader, and far more legitimate reality that early common stockholders and investors have very different incentives and perspectives on company growth, is a common straw-man tactic for obfuscating the issue.  Both sides deserve to have un-muzzled voices in governance.

D. Clarify the anti-dilution exceptionsBe clearer about the exceptions to anti-dilution adjustments, instead of engaging in a post-signing “battle of the standards.” While not always an issue, these can sometimes be ways for the preferred to squeeze the common by refusing to waive anti-dilution unless they “give” on something. Spell them out in the term sheet.

E. Clarify how all Board voting will happenAre there specific Board actions that, aside from a Board majority, the investors expect for their own directors to have veto over? If not, say so. If so, list them. VC docs often have a section, apart from stockholder veto rights, that give the preferred directors veto (at the Board level) over certain key actions. If you’re silent about this issue, instead of making it clear that a majority governs all the time, investors will often claim that it’s an open point for negotiation in the docs. Silence is not your friend.

If YC truly wants their term sheet to serve as a balanced (and not biased) reference point for Series A deals (and I believe they do), they should prominently address at least these core economic and control issues; not in a passing blog post reference, but squarely in the document with appropriate brackets so as not to signal a “default” and therefore not slant negotiations. Having public templates as starting points, like the NVCA has done for some time, can be helpful, and we utilize them regularly to streamline negotiation and save fees. But it’s a big responsibility and needs to be done carefully; with input from people on the other side of the table whom the money can’t “squeeze” if they speak honestly and openly.

The general theme here is that you should be clear in the term sheet on all material issues. Nothing is more material than economics and control. Keeping it short, and glossing over things by referencing a nebulous “standard,” or simply not addressing a point at all, favors investors because it transfers negotiation to a context where the company has less optionality and flexibility. We’ve closed deals that land, after transparent discussion and negotiation, in any number of places on these above-mentioned points. The real point we’re trying to emphasize in this post isn’t about pushing deals to go in one direction or another – that depends on the context – but highlighting just how often these issues aren’t even discussed with startup teams because of games that investors and lawyers are playing, and their incentives to “close fast.”

Some people argue that you should “sign fast” on a term sheet because if you negotiate, you might “lose the deal.” We don’t see that actually happen in practice, and can’t think of a clearer signal that you might not want to take someone’s money than being told that the deal will die if you try to clarify even a few material points. This, again, is the kind of sleight of hand rhetoric that sounds like it’s advice to help entrepreneurs, when in fact it helps investors. In reality, spending more time to achieve alignment on a more detailed term sheet expedites drafting and closing once the term sheet is signed.

Start asking the right questions.

In a game of the inexperienced v. the highly experienced, moving very fast, and not taking the time to ask important high-stakes questions, favors the experienced. Great startup lawyers prioritize deals because they know they deserve urgency, but show us lawyers who act as if speed should be a founder team’s top priority in a financing, and we’ll show you lawyers who are captured by money players. In too many cases, startup entrepreneurs’ cultural inclination toward speed and automation – which in the right contexts is a good thing – has been hijacked by misaligned but very clever repeat players in order to dupe the inexperienced into adopting legal strategies that actually hurt their interests.

Wrapping this topic up, as counsel our job isn’t to always provide startup clients direct answers, but sometimes to simply ensure they, in their inexperience and unequal power in the market, are asking the right questions. Questions like:

  • What do we really mean by “standard”? Can the data be manipulated?
  • Whose “standard” is it, and are they biased? Can their “founder friendliness” be a marketing tactic instead of full reality?
  • How much should I even care whatever “standard” means, at least as it relates to my most high-stakes terms, if I’m building a unique company with its own priorities, context, leverage, etc.?
  • Might it be a bigger problem (than my investors will acknowledge) if my company counsel is far more motivated, via referrals and other economic ties, to keep my investors happy instead of the inexperienced common stockholders whose skin is entirely in this one company?
  • Is “moving fast” and rewarding my company’s lawyers for minimizing their involvement (with flat fees) really in my best interests, or is “saving money” a clever excuse to keep me ignorant and not properly advised of what I’m getting into, so that more experienced players can then take advantage of the imbalance?

We don’t pretend to have universal answers for these questions, because there aren’t any. Where you land depends on the context, the people involved, their unique priorities, and the kind of relationship they expect to have going forward. You know, a lot like term sheets.

This post (which is not legal advice, btw) was co-authored with my NYC colleague, Jeremy Raphael.

The Problem with Short Startup Term Sheets

TL;DR: Shorter term sheets, which fail to spell out material issues and punt them to later in a financing, reflect the “move fast and get back to work” narrative pushed by repeat players in startup ecosystems, who benefit from hyper-standardization and rapid closings. First-time entrepreneurs and early employees are better served by more detailed term sheets that ensure alignment before the parties are locked into the deal.

Related reading:

In my experience, there are two “meta-narratives” floating around startup ecosystems regarding how to approach “legal” for startups.

The first, most often pushed by repeat “portfolio” player investors, and advisors aligned with their interests, is that hyper-standardization and speed should be top priorities. Don’t waste time on minutiae, which just “wastes” money on legal fees. Use fast-moving templates to sign a so-called “standard” deal.  Silicon Valley has, by far, adopted this mindset the furthest; facilitated in part by the “unicorn or bust” approach to company building that its historically selected for.

An alternative narrative, which you hear less often (publicly) because it favors “one shot” players with less influence, is that there is a fundamental misalignment of interests between those one shot players (founders/employees, common stockholders) and the repeat players (investors, preferred stockholders), as well as a significant imbalance of experience between the two camps. Templates publicized by repeat players as “standard” are therefore suspect, and arguments that it’s *so important* to close on them fast should cause even more caution.

Readers of SHL know where I stand on the issue (in the latter camp).  Having templates as starting points, and utilizing technology to cut out fat (and not muscle), are all good things; to a point. Beyond that point, it becomes increasingly clear that certain investors, who are diversified, wealthier, and have downside protection, use the “save some legal fees” argument to cleverly convince common stockholders to not ask hard questions, and not think about whether modifications are warranted for their *specific* company. Hyper-standardization is great for a diversified portfolio designed for “power law” returns. It can be terrible for someone whose entire net worth is locked into a single company.

Among lawyers, where they stand on this divide often depends (unsurprisingly) on where their loyalties lie. See: When VCs “Own” Your Startup’s LawyersKnowing that first-time founders and their early employees often have zero deal experience, and that signing a term sheet gets them “pregnant” with a “no shop” and growing legal fees, it’s heavily in the interest of VCs to get founders to sign a term sheet as fast as possible. That’s why lawyers who are “owned” by those repeat players are the quickest to accept this or that “standard” language, avoid rocking the boat with modifications, and insist that it’s best for the startup to sign fast; heaven forbid a day or two of comments would cause the deal to “fall through.”

I was reminded of this fact recently when Y Combinator published their “Standard and Clean” Series A Term Sheet.  It’s not a terrible term sheet sheet by any means, though it contains some control-oriented language that is problematic for a number of reasons and hardly “standard and clean.” But what’s the most striking about it is how short it is, and therefore how many material issues it fails to address. And of course YC even states in their article the classic repeat player narrative: “close fast and get back to work.”  The suggestion is that by “simplifying” things, they’ve done you a favor.

Speaking from the perspective of common stockholders, and particularly first-time entrepreneurs who don’t consider their company merely “standard,” short term sheets are a terrible idea. I know from working on dozens of VC deals (including with YC companies) and having visibility into hundreds that founders pay the most attention to term sheets, and then once signed more often “get back to work” and expect lawyers to do their thing. It’s at the term sheet level therefore that you have the most opportunity to ensure alignment of expectations between common stock and preferred, and to “equalize” the experience inequality between the two groups. It’s also before signing, before a “no shop” is in place, and before the startup has started racking up a material legal bill, that there is the most balance and flexibility to get aligned on all material terms, or to walk away if it’s really necessary.

A short term sheet simply punts discussions about everything excluded from that term sheet to the definitive docs, which increases the leverage of the investors, and reduces the leverage of the executive team. Their lawyers will say this or that is “standard.” Your lawyers, if they care enough to actually counsel the company, will have a different perspective on what’s “standard.”  This is why longer term sheets that cover all of the most material issues in VC deal docs, not just a portion of them, serve the interests of the common stock. It’s the best way to avoid a bait and switch.

To make matters even worse for the common stock, it’s become fashionable in some parts of startup ecosystems to suggest that all VCs deals should be closed on a fixed legal fee; as opposed to by time.  Putting aside what the right legal cost of a deal should be, whether it’s billed by time or fixed, the fact is that fixed fees incentivize law firms to rush work and under-advise clients. Simply saying “this is standard” is a fantastic way to get a founder team – who usually have no idea what market norms, or long-term consequences, are – to accept whatever you tell them, and maximize your fixed fee margins. Lawyers working on a fixed fee make more money by simply going with your investors’ perspectives on what’s “standard” and “closing fast so you can get back to work.” For more on this topic, see: Startup Law Pricing: Fixed v. Hourly. 

When the “client” is a general counsel who can clearly detect when lawyers are shirking, the incentives to under-advise aren’t as dangerous. But when the client is a set of inexperienced entrepreneurs who are looking to their counsel for high-stakes strategic guidance, the danger is there and very real; especially if company counsel has dependencies on the money across the table (conflicts of interest). For high-stakes economics and power provisions that will be permanently in place for a long time, the fact that investors are often the ones most keen on getting your lawyers to work on a fixed fee, and also seem to have strong opinions on what specific lawyers you’re using, should raise a few alarm bells for smart founders who understand basic incentives and economics. If your VCs have convinced you to use their preferred lawyers, and to use them on a fixed fee, that fixed fee is – long term – likely to help them far more than it helped you.

Much of the repeat player community in startup ecosystems has weaponized accusations of “over-billing” and “deal killing,” together with obviously biased “standards,” as a clever way – under the guise of “saving fees” – to get common stockholders to muzzle their lawyers; because those lawyers are often the only other people at the table with the experience to see what the repeat players are really doing.  

The best “3D Chess” players in the startup game are masters at creating a public persona of startup / founder “friendliness” – reinforced by market participants dependent on their “pipeline” and therefore eager to amplify the image – while maneuvering subtly in the background to get what they want. You’ll never hear “sign this short template fast, because it makes managing my portfolio easier, and reduces your leverage.” The message will be: “I found a great way to save you some fees.”

I fully expect, and have experienced, the stale, predictable response from the “unicorn or bust” “move fast and get back to work” crowd to be that, as a Partner of a high-end boutique law firm, of course I’m going to argue for more legal work instead of mindlessly signing templates. Software wants to “eat my job” and I’m just afraid. Okay, soylent sippers. If you really have internalized a “billion or bust” approach to building a company, then I can see why the “whatever” approach to legal terms can be optimal. If you’re on a rocket ship, your investors will let you do whatever you want regardless of what the docs say; and if you crash, they don’t matter either. But a lot of entrepreneurs don’t have that binary of an approach to building their companies.

Truth is that, in the grand scheme of things, the portion of a serious law firm’s revenue attributed to drafting VC deal docs is small. Very small. You could drive those fees to zero – and I know a lot of commentators who simply (obviously) hate lawyers would love that – and no one’s job would be “eaten” other than perhaps a paralegal’s.  It’s before a deal and after, on non-routine work, and on serious board-level issues where the above-mentioned misalignment between “one shot” and repeat players becomes abundantly clear, that real lawyers separate themselves from template fillers and box checkers. The clients who engage us know that, and it’s why we have the levels of client satisfaction that we do.  We don’t “kill deals,” because it’s not in the company’s interest for us to do so. But we also don’t let veiled threats or criticisms from misaligned players get in the way of providing real, value-add counsel when it’s warranted.

So while all the people pushing more templates, more standardization, more “move fast and get back to work” think that all Tech/VC law firms are terrified of losing their jobs, many of us are actually grateful that someone out there is filtering our client bases and pipelines for us, for free.

Why our lawyers work fewer hours

Background Reading:

When you hire a typical large high-end law firm, the lawyers you work with are generally required to work 60-80 hour weeks non-stop if they want to keep their jobs; and at the higher end of that range if they want to make partner (in 8-10 years).  This is considered totally normal among that tier of law, as a “price” for the privilege of working there. If you want to see the inevitable end-result of that kind of culture, read the NYT article I’ve linked to above. It may seem extreme, but that profile of life is far less rare in law than most outsiders would think.

On top of the work expectations, most non-partners take home about 25% of the revenue they generate from clients. The other 75% goes to firm overhead (infrastructure) and partners. So when elite BigLaw charges you $695/hr for a senior associate, maybe $175/hr goes to the associate, the rest goes elsewhere. Obviously, the big question becomes how much of that “other stuff” is really necessary; and the answer varies depending on the type of client.

The causal chain here is pretty straightforward: bloated overhead and bureaucracy -> lower take-home for lawyers (and higher rates for clients)-> elite lawyers work insane hours to make good money -> divorce, depression, therapy, drug addiction, etc. etc. This is why, as we’ve built and scaled out our leaner but still high-end boutique firm, people have often heard me speak of “bloat” as if it’s the next incarnation of satan. Because I know that, from having studied that causal chain very closely, the extra piece of bullshit technology, or administrative person who just over-complicates processes, is directly tied to why many lawyers’ marriages fall apart, or their kids end up in therapy; or why they can’t get married or build families/relationships in the first place.

If I generated a dollar, and you want to take a cut of it, you better believe I’m going to make you earn it. And I say “no” far more often than I say “yes.”

At E/N, our lawyers, including partners, work on average 25% fewer hours than their BigLaw counterparts, at rates about $200-300+/hr lower; and our credentials speak for themselves. Top-performers (on a number of metrics, not necessarily hours) actually out-earn what they’d expect to make in BigLaw, while everyone generally makes more than what they’d expect as a GC or in some other “lifestyle” lawyer-type job.

It hasn’t been easy to piece together – getting extremely intelligent (the 1%), highly-trained professionals to coordinate and integrate together into a new brand is way more complicated than most would think, and it’s why precious few boutique firms reach any meaningful level of scale before falling apart. It still takes quite a lot of scalable “infrastructure,” just designed very differently from how old firms build it. But ultimately it’s a great set up for clients and for lawyers; not just those at the top of the hierarchy. It works, and we’re growing, sustainably, by knowing what we’re building, and who we’re building it for.

I am 100% convinced that our emphasis on quality of life for lawyers translates to better service for clients, in terms of responsiveness, creative solutions, and ultimate value add for our time. When your lawyers aren’t forced to over-stuff their “plate” all day, every day, the clients they work with get better service. That’s demonstrated in our client testimonials.

Part of our focus on client satisfaction is in selecting for clients who, themselves, have a strong sense of balance. They want to build great things and make great money – and work hard, but they reject the toxic values, pervasive in so much of the market, that myopically celebrate the neglect of so many other important things in life in order to “win.” Trust me, we’re winning and our clients are winning, but at a much broader, more important game.

In my value structure and those of our lawyers, there’s no bigger “loser” than the guy with tons of money, but a failed personal life, horrible health, and nothing meaningful to come home to other than more work; and there’s no amount of spin that can get us to reframe that life as “crushing it” or “strong work ethic.”

I have no doubt that the hard-grinding culture of traditional elite law will continue, in the same way that it continues in big pockets of tech ecosystems. It has its place in the world. We see our role as simply building out an alternative, and letting people – both clients and lawyers – self-select for what they want and support.

 

 

 

Startup Law Pricing: Fixed v. Hourly

TL;DR: There are very natural reasons – inherent in the dynamics of complex, high-end legal services, including for startups – that explain why flexible time-based billing is still the most common pricing structure among law firms specialized in emerging companies (startup) law. And there are very real downsides and limitations to “fixed fee” pricing that founders all need to be aware of; including, most importantly, that flat fees reward law firms for reducing the quality and flexibility of their work (such as not negotiating key terms) in ways that first-time entrepreneurs are often unable to detect.

First-time entrepreneurs, who’ve usually never hired serious lawyers before, understandably get heart burn when thinking about the cost of legal services. The goal of this post is to provide some clarity on how legal billing for startups works in general, and to also bust a few myths circulating around ecosystems on the topic.

First, I strongly suggest reading: Lies About Startup Legal Fees. A few highlights:

  • Long-term, client-facing legal technology does not dramatically cut legal spend for startups.
    • As a legal CTO who regularly tests and adopts new legal tech for our boutique firm, I have a very clear understanding of what technology, including cutting edge machine learning/AI, is capable of accomplishing in high-end, high-complexity legal services. In the very early days, where complexity and cross-client variability is minimal (like formations) tech can and does play a key role in keeping costs down, but in startup law its utility breaks down fast. I am a very early adopter, but one thing I don’t adopt is techno-BS.
    • In the long-term, given the high, often irreversible cost of errors and the significant variability between clients, legal technology plays only a small role in cutting overall spending. This is, at the end of the day, a highly trained human judgment/skill driven business, with targeted technology in the background. Anyone trying to make this area “LegalZoom-y” will eventually crash right into the fundamental realities of the business.
    • While some techies will certainly tell you otherwise, the most “disruptive” developments in law aren’t in adopting software or technology, but in eliminating unproductive overhead, simplifying firm structures, and implementing project and knowledge management more consistently and deeply; enabled by off-the-shelf tech that is hardly earth shattering. These strategies cut the cost of legal by hundreds of dollars an hour, while improving responsiveness and quality; which exactly zero pieces of tech can even get close to doing. See: The Boutique Ecosystem v. BigLaw. Subtractive, not additive, innovation.

Sidenote: there are big market opportunities for AI/ML and other legal tech in serving very large clients with hundreds/thousands of related contracts and transactions, all on top of a single corporate structure. I call this “vertical” legal tech. It’s in “horizontal” legal tech (automation across companies) that much of legal tech’s promise has been overblown. After automating secretary/paralegal work, it hits a hard wall of customization, complexity, and high error cost that renders the most cutting edge technology virtually useless.

  • DIY almost always costs more in the long-run – “Legal Technical Debt” is real. The cost of fixing legal errors compounds over time, and saving $1 today will very often cost you $5-10 in a few months or years, no matter how many blog posts you’ve read or templates you’ve downloaded.
  • Compensation and institutional infrastructure drive legal quality and scalability, which controls costs. – Great lawyers, just like great software developers, expect to be compensated for their talent. Oh, and btw, Law School costs about $200-250k and 3 years of your life. Very large firms and smaller firms can both have high-quality lawyers if they pay them properly, with the real difference being the additional overhead on top of compensation. Larger firms have much higher overhead to pay for infrastructure needed to represent unicorns in very large deals. Boutique firms are lower-overhead, and better designed for “normals.” Solos are best for small businesses.

Second, another Startup Law myth worth busting is the idea that fixing legal fees (as opposed to more flexible hourly billing) “aligns” incentives between entrepreneurs and their lawyers. I touch on this topic a bit in Standardization v. Flexibility in Startup Law.

It’s become lazily fashionable to criticize the billable hour as the main source of inefficiency in law. But the reluctance in traditional law firms to adopt technology and improve processes is driven, at least among startup-focused firms, far more by the decision-making structure of the firms, and the inertia that creates, than the billable hour. Partners in those firms often have so much control over how their clients are served, that the firm as an institution is incapable of mandating large-scale change. The egos of partners hold back the profession far more than billing structure.

The idea that time-based billing means lawyers are just going to maximize how much they charge clients, and never optimize, is economically ridiculous and ignorant. The lawyer-client relationship is very long-term, and smart entrepreneurs can easily get info in the market if they feel their lawyers are over-charging. Switching to more efficient firms is not that difficult.  Costs in Startup Law have been going down significantly over the past decade, with hourly billing still being the norm. There is very short feedback loop on law firm pricing, which incentivizes firms to reduce truly unnecessary costs. A team can very easily take an invoice and ask other founders/startups whether it is inflated relative to market norms. The feedback loop on qualitative issues, like poor negotiation or errors, is far longer and more opaque, because those issues often aren’t discovered until years later, and even then its hard to compare apples to apples between companies. 

If you (cynically) think that hourly billing gives your lawyers a strong incentive to over-work, then fixed billing gives your lawyers an even stronger incentive to under-work. By guaranteeing a law firm a price on a transaction, regardless of how long it takes, you’ve tied their ROI to how little time they spend on it; narrowing optionality, delegating to less trained people, and rushing through material issues all become drivers of profitability. In the world of serious legal services, where speed/cheapness are hardly the only concern of clients, and there are very material, difficult-to-detect qualitative variables in service output, the idea that this is “aligning” lawyers with their clients is nonsense. Fixed fees do not align incentives; they reverse them.

Fixing fees, when the circumstances for “fixability” aren’t really in place (more on that below), therefore raises serious quality concerns. In healthcare, a botched job is almost always quickly noticeable to the patient. In law, especially startup law (where the client often isn’t seasoned enough to detect errors/rushed work) big quality issues can, and often do, take years to surface, since they’re tucked away in docs that sit unused until a major event, or the inexperienced founders simply never realize that an option their lawyer could have brought up, wasn’t. This, by the way, is why the most experienced players in any market are always deeply skeptical of new legal service entrants promising low prices, even if they’re early adopters in many other areas. It takes real effort and quality signaling to get them off of reputable legal brands. That reluctance is logical, given the opaque and high stakes nature of the service; very different from most fields.

If your law firm has agreed to a fixed fee, and suddenly you find yourself spending a lot more time interacting with paralegals working off of checklists (instead of lawyers), now you know what “alignment” really means.  Fixed fees are not magical, and they come with very real tradeoffs. You can have the exact same end-price for a transaction between time-based lawyers and flat fee lawyers, and the flat fee lawyers will be rewarded for minimizing the work they perform, and reducing quality; especially when the client isn’t fully capable of assessing that quality, which is often the case with new entrepreneurs. 

The predominance of the hourly billing model among high-end law firms is, first and foremost, a reflection of the significant variability among client needs and expectations, and the fact that flexible hourly billing is the most effective way to tailor work for each client, without reducing quality standards.

  • Need a reseller agreement? We’ve drafted them for $1.5K, $5K, and over $20K. Unpredictable variables: strategic importance of the deal, dollar value, size of the company, location, who the reseller is, who the reseller’s lawyers are, industry, and a dozen others.
  • I see “seed stage” startups who spend nothing on legal for a full year, some that spend $10K, others $25K, and a few that spend $100K, all due to widely varying needs.
  • I’ve seen “Series A” financings close for $15K, $30K, and over $100K, and everywhere in-between, and all for perfectly logical reasons understood by the client in the context.
  • M&A deals are totally all over the place in terms of time and costs.
  • In short, companies are not like medical patients. Biology and medical science produce very clear “bell curves” that enable things like health insurance pricing and fixed-fee medical procedure costs. There is no underlying DNA/biology constraining variability among companies, and therefore far less rhyme or reason across a legal client base.  The drivers of legal cost variability are far wider, subjective, unpredictable, and randomly distributed, which makes fixed-fee pricing not feasible for many broad-scope firms and clients.
    • Name another field in which, on top of there being significant variability of the working environment (the legal/contract ‘code base’ for each company), there are also subjective drivers of cost on both the client side (your client’s preferences heavily drive time commitment) and also the third-party side (the counterparty/lawyers on the other side can dramatically increase time commitment). The level of structural uncertainty and variability is much higher than healthcare, construction, manufacturing, consulting, and many other industries.
  • Given the above, the only way to make fixed-fee pricing work economically in corporate law is to “tame” this variability, and that “taming” results in downsides that are often unacceptable both to firms and to clients.

So what are the variables that help “tame” client work enough to make fixed fee pricing viable in Startup Law?

A. Very early work – There is a reason that formation documents are the most heavily automated and price-fixed in startup law: the number of unknowns and idiosyncracies are minimized. When a startup has decided on a “standard” VC-track C-Corp structure (which, btw, we see this becoming a less obvious decision for founders – see More Startups are LLCs), there are no outside parties to negotiate with, or other lawyers to deal with. The scope is clear, and the circumstances in which costs could go off the rails are minimized. Most of our clients are incorporated/formed on a fixed fee.

  • Anyone who observes the heavily tech automation / fixed-fee driven nature of startup formations and extrapolates that across the full spectrum of legal work is incredibly naive as to how complexity and client variability increase exponentially immediately after formation; as circumstantial differences start to creep into the legal “code base.” The low hanging fruit for legal automation has been eaten (see Clerky), and people who understand both technology and law are rightfully skeptical re: what even the most advanced, cutting edge AI can really do for high-complexity corporate law for the next decade, outside of very *very* narrow applications.

B. Narrow the scope – Remember the point that fixed fees don’t align incentives, but instead reverse them? Fixed fees make it costless for the client to demand more work. This logically means the law firm has to start drawing hard boundaries over what is acceptable for the client to ask for (inflexibility). We recently started our Alpha Program offering a limited scope of early-stage work on a fixed monthly fee. While there’s definitely been interest, a lot of our best clients opt out simply because they prefer maximal flexibility in terms of what work gets done, and how it gets done. In their mind, the whole point of hiring serious lawyers, just like hiring serious software developers, is to not get boxed into a narrow approach.

C. Narrow the client profile – I know a decent number of firms that have built successful practices on heavy fixed fee utilization. The almost universal way they’ve accomplished this is by dramatically narrowing the type of client they take on. Specific industries, specific geographic locations, specific sizes or growth trajectories, etc. Pick a narrow niche, and own it. If you can make your clients look and act far more alike by limiting the type of client you take on, you can more easily create that healthcare-like “bell curve,” and then start pegging prices. But for many law firms that have a diverse client base with diverse needs – including firms that represent startups with varying industries, growth and funding trajectories, subjective preferences, etc. – this is simply not feasible. I have never seen a firm or lawyer successfully utilize fixed-fees at scale without significantly narrowing their target client profile; the economics otherwise don’t work.

  • Note: I have made the argument many times that part of “BigLaw’s” problem is that it simply does too much, and that the “subtractive innovation” brought about by lean boutiques with more specialized practice areas that can collaborate ad-hoc is a meaningful transformation of the legal market. But virtually every specialized high-end boutique we work with still heavily utilizes time-based billing, for all the reasons described here. For fixed-fees to work, you need far narrower specialization than by practice area; like “small businesses under 40 employees” or on the opposite end “very high-growth SaaS companies raising top-tier traditional venture capital.”
  • The need for very narrow specialization driven by fixed fees will create problems for clients who engage a firm that isn’t a 100% good fit. They will inevitably find themselves pushed to mold their company to the rigid capabilities of the narrow firm, which will feel like putting the cart before the horse. What this means is that the decision to keep many law firms more generalist, with more flexible time-based billing, is for many clients a feature; not a bug. 

Our approach to pricing legal services for our startup clients is the result of sitting down and talking to founders about what their concerns really are. What we’ve found is that, more than fixing prices (with all of the downsides that entails), clients just want to prevent surprises, and to not feel like they overpaid. If something takes longer for very good reasons, it’s OK for it to cost more. If it can be done faster, while fulfilling all the client’s goals, then cost-savings should go to the client. Happy clients generate more work and referrals. When combined with transparency and open dialogue, there’s a symmetry and fairness in this approach that is often much more aligned with the “partnership” nature of the long-term lawyer-client relationship than the inflexible dynamics of buying a hardened product. 

So we’ve implemented a number of processes to accomplish that – including regular (more frequent than monthly) billing reports, transparent budget ranges based on our historical client data, and flexible payment options. We’ve found that these go very far toward helping startups get comfortable with their legal bills, without deluding anyone into thinking that you can somehow universally fix the costs of services that are inherently unpredictable to everyone. Our Net Promoter Score (NPS) as of today is 77.

Tying this all together, entrepreneurs should understand that there are very logical, client-centric reasons for why the billable hour remains the dominant billing model for serious law firms working with diverse clients; notwithstanding what lazy arm-chair commentators say about the billable hour. Law is hardly the only industry that utilizes “cost plus” billing, which is what the billable hour is. Occasionally I run into founders who struggle to grasp this, and then I’ll find that they’ve engaged a software developer as a contractor who, lo and behold, is paid by the hour. Many startup lawyers refer to their job as “coding in Word.”

That developer didn’t go to Stanford to practice cookie-cutter programming, and I didn’t go to Harvard to practice cookie-cutter law.  Fixed fees are not – at all – a magical panacea that suddenly smooths out all the challenges of engaging serious lawyers. To the contrary, they create their own major problems.  Open dialogue between client and law firm will keep costs reasonable, and minimize surprises, without getting stuck with all the downsides of productizing something that fundamentally isn’t a product.

How fake “Startup Lawyers” hurt entrepreneurs

TL;DR: Entrepreneurs need to be aware of the growing trend of lawyers from random backgrounds re-branding themselves as “startup lawyers,” despite having only the thinnest understanding of the subject.

Background reading:

There are two trends worth discussing in this post, both of which I’ve seen seriously hurt entrepreneurs and startups.

Thrown to the juniors.

First, one reason many entrepreneurs are dropping very large law firms for more “right sized” boutiques is that those law firms have become so unaffordable for almost any early-stage company that entrepreneurs end up working almost exclusively with very young, junior lawyers. I touched on this issue briefly in The Problem with Chasing Whales.  One partner in our firm worked on a seed financing in which his BigLaw counterparty literally said on their phone call “I only have 15 minutes to spend on this deal; otherwise I start having to write off time.”

The firm you engage may have a marquee brand, but if to that firm you are small potatoes, you will end up working with that firm’s B or C-team, which will put you much worse off than having hired a set of lawyers that take your company more seriously.

Junior professionals absolutely have a place in law, but that place is not working directly with CEOs on their most strategic decisions, no matter the size of the company. It’s working mostly in the background, with real senior level involvement and oversight. When an entrepreneur is thrown to junior lawyers, it reflects how the firm has prioritized (or not) that work, even if to the entrepreneur the project is extremely important.

Fake “startup lawyers.”

But the title of this post is really about a second, even more troubling, trend. I’ve been seeing an increasing number of litigators, real estate lawyers, patent lawyers, and lawyers with all kinds of backgrounds who have suddenly decided to brand themselves as “startup lawyers.” A little tweak to the website, read a few blog posts, perhaps host a free session at a co-working space or two, and voila, now they’re ready to help entrepreneurs.

Holy crap is this dangerous. Imagine if you were talking to a doctor about a potentially serious heart condition, inquired about their experience, and then got back the following response: “well, I’ve been a dermatologist for the past 5 years, but after reading a few blog posts I decided I’d try my hand at cardiology.” Walk out the door, fast.

In the “thrown to the juniors” case, at least those juniors have some accurate, up-to-date institutional infrastructure (templates, checklists, internal firm training, partner review, etc.) to rely on as they try to help startups. But these random re-branded lawyers are essentially training on early-stage companies, while relying on extremely generalized resources (like this blog) as guidance. We see mistakes everywhere, often because we get hired to clean up the mess.

In every serious law firm with a real reputation for representing emerging companies, lawyers who call themselves “startup lawyers” are corporate/securities specialists with a strong understanding of early-stage financing, tax, commercial, IP, M&A, and labor law as they typically relate to early-stage companies. They have the depth and breadth of expertise to properly serve as an early-stage company’s “outside general counsel,” of sorts, while relying on deeper subject matter specialists when needed. 

But a litigator or patent lawyer who read a few blog posts and stayed at a holiday inn express? Disaster. As I’ve written many times before, “startup law” is largely built on contracts, and the entire point of contracts is that they are permanent unless everyone involved agrees to “fix them.” There’s no “v1.1” update to fix bugs. That means the iterative, “move fast and break things” “we can fix it later” culture of software development is the last approach anyone in their right mind will apply to legal issues.

Stop treating entrepreneurs like suckers.

Ultimately, what these developments reflect is an underlying mindset among lawyers (and other market players) that “startup” is synonymous with “little shit companies.” First-time entrepreneurs may be very smart, but they don’t know what they don’t know, and they rely on their ecosystems and advisors for guidance in almost every area. It’s the same problem that leads them to get pushed to hire captive lawyers who really work for their investors, instead of hiring independent counsel that will actually do its job. 

Just throw a junior, or a random lawyer who managed to maneuver into a few referrals, to them; they’ll figure it out. They’re just a tiny company anyway. Whatever.

So my request to the broader ecosystem is: please, stop referring entrepreneurs to your random, local lawyer friend who decided to take a stab at this “startup law” thing. That’s not how this works, and you are hurting real people, building real companies with long futures built on the foundations put in place by these fake advisors.

And to entrepreneurs: be careful out there, and do your diligence. Many of us know that you wouldn’t quit your job for, or pour your life savings into, a “little shit company,” so align yourself with an inner circle of people who think accordingly.