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.