"What's Market?" For Every Deal Negotiation

Every deal lawyer has been here. You are deep into negotiations on a complex transaction, when someone raises the inevitable question: "What's market?"

It's a deceptively simple question with enormous implications:

• What have other parties agreed to in similar deals?

• What are the boundaries of what's acceptable?

• And most importantly, what leverage do I have in this negotiation?

Knowledge Is Power in Deal Making

Understanding what's "market" is more than academic curiosity. Knowing the answer is strategic ammunition. When you can confidently say "everyone else has agreed to this provision", you are backed by precedent. It effectively shifts the burden of proof to the other side to explain why they should be different.

Conversely, when you do agree to move away from market terms, that knowledge becomes valuable currency. You can legitimately claim you're being generous and deserve something in return during the inevitable horse-trading that defines complex negotiations.

This dynamic plays out across countless scenarios. In each case, the party with better market intelligence holds a significant advantage.

The Current Landscape: Two Imperfect Approaches

Legal technology has responded to this need with two primary approaches, each with its own limitations.

(A) The Dashboard Approach

Many tools take their proprietary datasets and present users with polished dashboards - charts, graphs, and summary statistics about deal terms. You might see that "78% of deals include a material adverse change clause" or that "average survival periods are 18 months". While useful for high-level trends, these tools often feel like black boxes. You can't see the underlying data or understand how conclusions were reached.

(B) The Deal Points Extraction Approach

Other platforms extract specific data points from documents, dollar amounts, dates, percentages, and use these to determine what's market. This approach offers more transparency into the underlying deals, but it treats all extracted terms as abbreviated data points, detached from the nuance of legal language.

Lawyers Don't Just Negotiate Numbers

Here's what both approaches miss: experienced lawyers often have access to more relevant deals than any third-party vendor. If you've spent years working in healthcare M&A or SaaS licensing, your document collection likely contains the most relevant precedents for your client in your deal.

More importantly, what's "market" in legal terms isn't just about numbers and dates. It's about the exact words that will govern the relationship. Consider these real-world questions that determine deal outcomes:

• Does the clause include the word "material"? That single word can dramatically change exposure.

• What specific events trigger the material adverse change clause? The list can make or break a deal.

• How is a warranty scoped? Do they cover IP infringement, validity, or both?

These distinctions matter because lawyers aren't just commercial negotiators working with term sheets. We draft the precise language that courts will later interpret and enforce as the parties' binding agreement.

Super Comparer: See the Words, Not Just the Data

Super Comparer takes a fundamentally different approach. Instead of extracting deal points or presenting dashboard summaries, it lets you line up the actual contract language from your relevant deals side by side.

Want to know what's market for limitation of liability clauses in your SaaS agreements? Pull up your five most recent deals and see exactly how each one handles:

• Caps on liability (dollar amounts and calculation methods)

• Carve-outs for certain types of damages

• Specific exclusions and their exact wording

• How the limitations interact with indemnity provisions

This isn't about aggregated data points. We let lawyers see the precise language that other sophisticated parties have agreed to use.

Spotting What Matters: Anomalies, Gaps, and Variations

With all your relevant terms aligned side by side, patterns emerge quickly. You can immediately spot:

• Missing provisions: Why doesn't Deal X have a force majeure clause when all the others do? Is that intentional or an oversight worth flagging?

• Extra provisions: Deal Y has an unusual escrow structure. Is this an innovative approach worth adopting or a red flag suggesting unique risks?

• Language variations: Four deals use "material adverse effect" while one uses "material adverse change." Do these differences matter for your client's specific situation?

• Inconsistent approaches: The confidentiality provisions vary significantly in scope. Which approach best serves your client's needs?

These insights inform not just what terms to include, but how to draft them and what trade-offs to consider during negotiations.

Beyond Blacklining: The Shuffle Compare Advantage

For deal documents that do not start from the same base, Super Comparer offers a mode of comparison called "shuffle compare". Similar provisions appearing in different orders, scattered across pages, buried in different sections, are reordered and reorganized by Super Comparer. Even when deals structure their terms differently, you see all the relevant language aligned and easy to compare.

This means less time flipping through pages and more time understanding what the language actually means for your deal.

Making Better Arguments, Faster

The result is you can walk into negotiations with confidence, armed with specific examples of what parties have agreed to in similar circumstances. When opposing counsel pushes back on a provision, you're not relying on vague recollections or generic market surveys. You can point to the exact language that five other parties found acceptable.

And when you do agree to something unusual, both sides understand that it's a conscious departure from market, making it easier to negotiate appropriate trade-offs elsewhere in the deal.

The Bottom Line

"What's market?" will always be a crucial question in deal negotiations. The answer shouldn't just come from black-box vendors or simplified data points. The answer should be supported by the actual language that experienced parties have used to solve similar problems.

Super Comparer puts that analysis at your fingertips, letting you leverage your own experience and document collection to answer the market question with precision and confidence.