Thy Legal Writing Shall Not Include “Shall”

Legal writing should be precise, and its meaning should be as close to indisputable as possible. That’s what we get paid to produce. Yet one little word, “shall,” continues to muck up legal writing (particularly contracts) everywhere. You can help root out this antiquated, confusing, oft-litigated bit of legalese, and you can do it very simply—never write it again, and eliminate it every chance you get.

On Legal Writing, Thou Shall Read Book of Garner

All lawyers are familiar with Bryan Garner’s work—he’s the Editor-in-Chief of Black’s Law Dictionary. I attended a Garner legal writing seminar and became a fan of Garner’s approach to legal writing, which instilled in me an intense dislike of “shall.”

Black’s Law Dictionary (2nd Pocket Edition) defines “shall” this way (examples omitted):

Shall (vb). 1. Has a duty to; more broadly, is required to…2. Should (as often interpreted by courts)…3. May…4. Will (as a future tense verb)… 5. Is entitled to…Only sense 1 is acceptable under strict standards of drafting.

That last note about strict drafting standards is great, except it seems that very few lawyers read that far down into the definition, if they have ever read it at all. So not only do we see “shall” used to try to express any of the meanings found in numbers one through five above, (note the vast differences) but many lawyers sprinkle “shall” around in documents like some sort of pixie dust, hoping it will magically make the document seem more “lawyerly,” and therefore less likely to be challenged in terms of its meaning. Thus, we get nonsense like, “shall be deemed to be,” and other such gibberish (by the way, please help destroy “deem” as well—but that’s a rant for another day). “Shall,” due to its multiple meanings, creates ambiguity that greatly increases the likelihood of disputes about what a sentence means. That is exactly what we are paid to avoid.

Thou Shall Find Alternatives to “Shall”

So what to use in place of “shall”? If you are trying to express that one must do something, try “must.” Simple, eh? Some find “must” too pushy, so “will” may be more palatable while still being clear. “May” also is fraught with peril, as it can mean “is permitted to,” or “might choose to,” or “has a possibility to,” or “might,” or even “must” in some instances.

Leave “shall” on the ash-heap of legal writing history where it belongs, and find the word or words that mean exactly what you are trying to express and nothing else. I hope you find (as I do) great satisfaction in eliminating “shall.” Think of it as a crusade.

(photo: http://www.flickr.com/photos/andresrueda/3055361311//)

Lawyering Skills

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  • Bob Larson

    I was taught in my legal writing classes that “shall” is obligatory and “may” is permissive, and any other use is just superfluous, bombastic, and pompous.

    I think the problem with a lot of words like “shall” and “deem” — and you hit on this — is that they’re used inconsistently by the same author, mostly due to a poor understanding of the meaning of words that have traditionally been the purview of lawyers. There’s nothing wrong with having (and using) a robust vocabulary; as you say yourself, lawyers are paid to avoid ambiguity about the meaning of their writings, and a lot of times, there’s a perfect word for whatever it is that you’re trying to say. But lawyers with a less-than-complete understanding of the words used by their peers water down the meaning by using them anyway, eroding the precision with which lawyers should be using language.

    • http://www.constitutionaldaily.com BL1Y

      I learned the same thing about shall and may. It’s very useful when used in this way, because halfway intelligent minds understand it is specifically meant in contrast to may (same with necessary v. sufficient).

      You shouldn’t use it other contexts to avoid confusion, but likewise, you should make sure to use it when it’s the right word.

  • http://www.koncision.com Ken Adams

    Andy: Given the limited role of “shall” in everyday English, it makes sense to omit it from statutes and consumer documents. But it serves a useful purpose in contracts, which use a more limited and stylized kind of language.

    Sure, “shall” is vastly overused in contracts. But if as Garner recommends you use instead “will,” that means you’re using “will” to express obligations AND futurity. Multiple meanings of that sort are the problem with “shall,” so replacing “shall” with “will” doesn’t represent much of an improvement. Also, those who point to litigation involving “shall” as a reason for purging “shall” from contracts don’t realize that the bulk of that litigation involves the language of statutes, not contracts.

    Furthermore, in attempting to ban “shall,” you’re addressing the symptom rather than the problem, the problem being that lawyers aren’t attuned to nuances of verb use. It’s best to use a different verb structure for each category of contract language, and in such a scheme, it’s useful to have “shall” express obligations imposed on the subject of the sentence (in other words, have it mean “has a duty to”).

    So disciplined use of “shall” in contracts is not only expedient (seeing as the transactional world already uses “shall” to impose obligations), it’s also the most rigorous approach.

    You might find of interest my New York Law Journal article on use of “shall” in contracts. A copy is available at http://www.koncision.com/wp-content/uploads/2011/05/nylj-shall-101807.pdf.

    And “deem” serves a useful function; see § 12.65 of my book A Manual of Style for Contract Drafting (ABA 2d ed. 2008).

    Ken

  • http://www.attorney-myers.com Andrew D. Myers

    There is a time and a place for the word shall. “Shall”, “may”, “must” and “can” each have their own unique meaning. There is a range of implication. The word “shall” is a valid selection from this vocabulary.

    The word “deem” also has its own particular and very significant meaning. See: Federal Rule of Civil Procedure 36. Requests for admissions force the opposing party into a position in which facts or documents are “deemed” admitted or genuine. This narrows issues. I have always found courts receptive to this oft neglected discovery tool.

    Black’s Law Dictionary itself is woefully outdated and replete with obfuscational language. Whenever I am forced to look something up in the tome, I feel like I am thrust into the world of “the party of the first part and the party of the second part.”

    Many, not all, attorneys have gone to law schools that drummed clear concise writing into them since day 1 in legal writing clinics and elsewhere. Clear overall conveyance of meaning, and not adherence to a ‘pet peeve’, are the key to crisp effective writing.

  • http://lawyerist.com/andy-mergendahl/ Andy Mergendahl

    Bob, thanks for your thoughtful comment. If every use of “shall” were intended to create an obligation or duty, we wouldn’t be in this mess. It’s the sloppy use of “shall,” rather than its correct use, that makes writing pompous as well as unclear, and I dislike pomposity as much as lack of clarity. Kudos to you for your attention to detail. If more lawyers simply picked up their law dictionaries and started analyzing their templates, we’d all be far better off.

  • http://www.AschemanSmith.com Landon Ascheman

    I agree with avoiding the sloppy “shall.”

    However, simply throwing words into the “do not use” list is a little over the top, imho. I think it is a perfectly acceptable word to use – where it actually belongs, and isn’t being over used.

  • http://www.lawworcester.com Gregory Casale, Esq.

    I really don’t see the confusion. I too learned in law school that “shall” was obligatory and “may” was discretionary. Judges do not waffle on it’s meaning in statues and I am sure if I brought a motion to challenge a statutory obligation brought by the word shall, I would be denied before I finished standing up to argue. Unless there is a question mark at the end of the sentence, turning it into a question, I think that “shall” is sufficiently unambiguous. If some attorneys out there can get by the laugh test with a challenge to the meaning of the word “shall” I would wager that the term was not in a statute. If a writer is ambiguous in drafting I am not sure it is the failure of the word so much as the skill or intent of the writer.

  • http://lawyerist.com/andy-mergendahl/ Andy Mergendahl

    Ken: Thanks very much for your comments. I read the article you linked, and while I agree that if every contract were drafted using “shall” with precision, I’d have no complaints. But I disagree that “will” is no improvement over “shall.” Perhaps “will” can mean an obligation or a “futurity,” but that potential for confusion is in my view a major improvement over the wide variety of meanings that “shall” is commonly used to express (including some that Black’s Law Dictionary doesn’t list). I just don’t see the other possible meanings of “will” (when used in a contract) as being seen by a court as viable alternatives to “has a duty to.”
    And while I haven’t done extensive research on litigation involving contracts using “shall,” when I see it used with multiple meanings in the same contract, I see an awful lot of opportunities for disputes as to the parties’ obligations. I don’t see that with “will” or “must.” I also think lawyers ought to be able to get past the “bossiness” of “must” for the sake of clarity.
    I don’t disagree that banning “shall” treats the symptom rather than the disease. My point in the post (and the root of its exasperated tone) is that “shall” is so sloppily used so often that doing away with it would force lawyers to find alternatives, which would force them to draft with care, which would instantly raise the level of a lot of legal drafting from terrible to not-terrible, and that would be very welcome development.

  • Yolande Dubow

    Is that not a) hypocritical and b) circular and c) void for ambiguity….
    shall not include shall ? a=/= a

    It’s bad when lawyers have logic and Maths to support them… ;-)

  • http://www.USLegalWriting.com Jim Burke

    I have a number of legal writing peeves, all of which I will spare you here; but the sloppy use of “shall” is pretty far down in the pile. Maybe it has more than one meaning; but I think most lawyers try to use the word to convey that something is mandatory.

  • Jason Hutchison

    I share the concern over the all-to-frequently-used “sloppy shall” in legal drafting. However, Kenneth Adams makes a strong case for a more precise use of “shall” in “A Manual of Style for Contract Drafting (2nd Edition).” http://bit.ly/kLryad Adams provides examples of ambiguity in many less-precisely drafted contract clauses and how to re-draft them for greater precision.

  • http://www.sheridanlawllc.com Dan Sheridan

    In her excellent treatise “Negotiating and Drafting Contract Boilerplate”, Tina Stark includes a great discussion on the rampant misuse of the “False Imperative”, i.e. the word “shall”. As she explains it, “shall” is appropriate when used in covenants (Seller shall… or Buyer shall…). But when used in other contexts, such as “This Agreement shall be construed under the laws of State XYZ”, the misuse becomes apparent. How can one say that an Agreement “shall” do anything? This little lesson has helped my legal drafting immensely.

    • http://www.LawWorcester.com Gregory Casale

      Excellent points. Any word misused will cause problems. Only a lawyer can spend a day defining and redefining the word “the” (I am a lawyer myself).

    • Rahul Jain

      It’s not that the agreement “shall” do anything. It’s that it must be manditorially construed under …

  • Anjali Sheoran

    Although i’m fairly new in the field of Contract Management, what I have come to realize is that words like “shall”, “will” or even “deem” are used in a variety of manners in different contracts. The use of these words depends on the commercial understanding and more importantly negotiating powers of the parties. For instance, if there is a contract between a Private Company and a Public Authority, the Company would not have much negotiating power and therefore would have to undertake certain obligations even though they may be against its commercial policies. On the other hand, if the same Company were to negotiate a contract with a private company who may have a lesser negotiating power, the words in the contract automatically change to less onerous words like “may” or “endeavor to”. However, agreeing with Mr. Andy Mergendhal, I have learnt in my professional experience that it is always advisable not to use onerous words like “shall”, “ensure” or “guarantee”, etc. because when it comes to interpretation of the Contract once it has been signed, it becomes very difficult for lawyers to interpret the provisions in a manner that their client’s commercial intent can be carried out while performing the obligations under the contract.

  • Cheryl Boone-Delgado

    Interesting. I agree with those who say the meaning of “shall” is clear, and that trying to eliminate it completely is over the top.

    As a language major and lawyer , I realize that Americans no longer use “shall” much in everyday language, although it seems to me that other speakers of English, such as the British, still do. Just because some lawyers misuse it, I don’t see why a word that makes a useful distinction should be discarded. That simply means that the lawyer who doesn’t understand the distinction and drafts ambiguously will do a disservice to his client. That’s too bad, but why should I use less precise language, when “shall” really is perfectly clear?
    It means obligatory, in ordinary language and in law.
    And, forgive me for sounding pedantic, but vehement opinion is diminished in force when it turns out that the writer does not really know his subject; a high school exposure to Shakespeare and the King James Bible shows even 21st century writers that the verb form for “thou” is “shalt.” Of course, since we no longer use “thou” we don’t use that form, but the verb itself has not dropped out of the language.
    Maybe further study is indicated before calling for the banishment of a perfectly good verb in legal drafting.

  • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

    Cheryl, in the post’s title I intentionally used “Shall” rather than “Shalt,” with which I am also familiar. I did that so I could use “shall” twice, and in a self-contradictory way. That attempt at humor, along with what I assure you was an attempt at tongue-in-cheek mock-vehemence in my call for “eliminating” the word, have apparently gone over with you, and a number of others, like a lead zeppelin.

  • http://www.tsbaikie.com Timothy Baikie

    What a number of commenters have overlooked, and some have just touched on, is that shall is well on its way to becoming an archaic word (see the “shalt” discussion above). It is not part of everyday speech and using it is the antithesis of plain language drafting. It elevates the tone of a document and practically invites the writer to insert even more legalisms.

    Whether “will” or “must” is a replacement is beside the point. Both work, depending on the context. The word “shall” can always be replaced by an adequate synonym (e.g. “This agreement shall be construed under the laws of” = “This agreement is governed by the laws of”). Taking the time to think of the right synonym instead of sloppily using “shall” forces the drafter to turn his or her mind to what the provision is actually supposed to mean.

  • http://www.USLegalWriting.com Jim Burke

    Andy, These exchanges would be a lot less interesting without humor. If it engenders some misunderstanding, that’s not so bad. It’s worth the risk to entertain as well as inform. Kudos.

  • Kelly

    In reading the comments above, I have found no reference to definition that takes the word meaning to “first use”. This is ultimately the decisive method for observing the concrete meaning of any word in Law or statute of Law. Look at where “Law” comes from. If you don’t….your missing the point. The founding fathers of this country knew this without question and this is without question in the writings of the constitution (even though that document has been thrown aside by maritime law). Breathe Deep and Say This “Thou Shall……” This Defines itself in your every being. If it doesn’t then you must surely be lost in the expanse of your own universe. This word is created and in its creation and jurisdiction over the last 6000 or so years has never deviated…unless argued upon by frivolity and those who do not know what Law is…A desription of what IS. Just as Science is only the description of How…In Themselves Law and Science do not create. So “Shall” is clearly defined and if you were to remind any Judge of his/her charge of the Law and who they answer to….even if they deny it…they would tell you that Shall means ” Having no Choice in the matter..it is being done and there is nothing you can do about it” or ” If you don’t do it, You will suffer the consequences”!
    It is better to know what you stand for than where you stand because in the end, it is not where you stood but what you did.

  • http://langtechnews.hivefire.com/ Rose

    The British use “shall” the way I was taught to use it (in Texas, in primeval times), and it is far from being archaic usage on, say, the streets of London today. Shall is strong (meaning mandatory) only when used in the second and third person. In the first person it is weak, and “will” is strong. So: “I shall go to the ball” (probably…), or “I WILL go to the ball” (you betcha I will). And: “she will go to the ball” (probably), and “you SHALL go to the ball” (Cinderella). I am not a lawyer (why on earth am I reading this post? googlemania I guess), but I imagine that neither contracts nor statutes often use the first person, so shall as a injunction (yikes, I forgot, you’re all lawyers!) seems perfectly correct to me. One problem with clear legal writing must be that the vernacular doesn’t stand still, and clarity for the great unwashed is a moving target.

  • Greg Lewis

    Does the end justify the means? Much material out there damns shall, or defends it. While all contributors make valid points, a discussion on the merits of correct use has little purpose unless burgeoning case law demands that its misuse end. And I see no demand like that. Kenneth Adams says that the majority of case law over this word concerns statutes, and NOT contracts. That is persuasive to me. If, in spite of its continued misuse (which I decry, by the way), the word doesn’t create many contractual problems it should be left alone? That said, I have scoured the web for ages looking for a comprehensive list of cases (say 20) that deal with the word as THE CAUSE of a contractual dispute, and cannot find any. Can someone supply one? Even just 5 would be great. I’d like to read them for myself.

    • http://www.koncision.com Ken Adams

      Greg: From a contracts perspective, “shall” can cause trouble when it’s used to express a condition. See, e.g., Howard v. Federal Crop Insurance Corp., 540 F.2d 695 (4th Cir. 1976). But that problem isn’t one that can be fixed by jettisoning “shall.”

      Incidentally, in the following blog post I discussed my recommendations regarding use of “shall” and weaknesses in Bryan Garner’s arguments regarding how to express obligations: http://www.koncision.com/revisiting-use-of-shall-in-contract-drafting/. It remains relevant, seeing as the current issue of the ABA Journal contains an article by Garner on the subject.

      Ken

  • Sandra

    I’ve been changing ALL of our contracts to have will instead of shall. Shall sounds stupid and pretentious. Get into the 21st century.