Lawyers Shall Stop Using Shall
To no real surprise, Webster's Dictionary defines the term shall-"vb. shan't. Contr. Shall not." When is the last time you heard the phrase, "we shan't go?" Not in my world. So, why do lawyers and laymen continue to overuse shall?
The positive form of shall is correctly used as "We shall overcome" or as a question "Shall we ...?" Other than these two verb forms, shall is not an appropriate term in our language.
So, why do we persist on the overuse of shall? Contracts are replete with sentences containing shall. The U.S. Constitution uses the term numerous times. In law school, we are taught that shall is "mandatory" and may is "permissive."
Lawyers and law students know only too well that law schools are not the epicenter of grammar and diction. Consider laws stating that "No person shall ...?" If shall means "has a duty to" or "is required to," - Houston we have a problem! We're negating a command to do something: You're not required to do it (but, by implication, you may if you like). That is obviously not the meaning. What is actually meant is to prohibit altogether (i.e. to totally disallow). Thus, the more appropriate terminology should be "No person may ...". That is, no person is allowed to do this.
When courts are called on to interpret a "No person shall" provision, they find that shall means may. As Supreme Court Justice Ruth Bader Ginsburg remarked in a recent majority opinion: "though shall generally means must, legal writers sometimes use or misuse shall to meanshould, will or even may."
My advice? Avoid the inappropriate use of shall by following these two rules: (1) restrict shall to meaning either "has a duty to" or "is required to"; or (2) eliminate shall altogether. Replace shall with must, will, is, may or the phrase is entitled to.
A simple rule to live by: "No, we shan't use shall!"
Article adapted from Bryan A. Garner's article Shall We Abandon Shall,2012 ABA Journal.
Call Carlson & Burnett at (402) 810-8611 or contact us online to schedule a free consultation.