The shocking misuse of shall(10)

Overuse and misuse has given shall a bad name. It has been so abused for so long that its use is now an addiction. The misuse comes from 3 sources:

• drafters who write something today knowing it will only be effective in the future, after the agreement is ratified - so they think and write in the future tense

• a desire to nail things down so that there can be no mistake that something shall be done or shall mean something, that someone "shall have a right" to something. This stems from an unjustified mistrust of other more suitable words and a misplaced reliance on the magic of shall

• precedent and habit, which conspire to persuade writers to use shall when they should not.

Let's look at some examples.

In definition sections

"President" shall mean . . .

In the holiday clause

The Company shall not be obliged to make payment for a statutory holiday . . .

In the confidentiality of records section

All employee's records shall remain confidential unless . . .

To give rights

The Union shall have the right to originate policy grievances

and

An employee shall have the right to have a union steward present . . .

To give jurisdiction

The Arbitration Board shall have jurisdiction . . .

To impose an obligation

The Employer shall give notice

and

The Employer shall pay . . .

To state a future obligation

The Legal document shall be printed and the cost shall be shared equally

To state an ongoing commitment

The LTD benefit . . . shall not be altered except through negotiation

To create entitlements

During each of the first to the third year of continuous full-time employment an employee shall earn entitlements to vacation calculated on . . .

The word shall has spread like a disease. Its improper use has so penetrated legal documents as to make them unreliable. So frustrated was the California Supreme Court with the improper use of shall in statutes, that it said:

It is a general rule of construction that the word "shall" when found in a statute is not to be construed as mandatory, unless the intent of the legislature that it shall be so construed is unequivocally evidenced.

With so many meanings of shall in legal documents, what to do? The cure is to abstain from using shall. Don't use the word at all. Remove all ambiguity,(11) and improve the language and tone of documents, with this test:

For every "shall" replace it with "must".(12) If it does not "read right" - shall is the wrong word to use.

Say the sentence aloud - what would you tell someone the words mean? Odds are that you will choose the right replacement word. Let's go through the shall examples and look for cures. Think about legal documents as they work day to day. They are "living documents" applying to today's question, so write them in the present tense.

1. President shall mean . . . Better: President means . . . (notice "must" would not fit)

2. The Company shall not be obliged to make payments for a statutory holiday Better: The Company is not obliged to make payments . . (or The Company need not . . .)

3. All employee's records shall remain confidential . . . Better: All employee's records are confidential . . . (or must remain confidential)

4. The Union shall have the right to originate policy grievances Better: The Union may originate policy grievances

5. The Arbitration Board shall have jurisdiction . . . Better: The Arbitration Board has jurisdiction . . .

6. The Employer shall give notice . . . The Employer shall pay . . . Better: The Employer must give notice . . . The Employer must pay . . . "Must" would fit in these two examples, so shall is correct and could be used here

7. The legal document shall be printed and the cost shall be shared equally . . . Better: The legal document is to be printed (by . .?) and the cost shared equally . . . [The first shall is not incorrect.]

8. The LTD benefit . . . shall not be altered except through negotiation . . . Better: The LTD benefit . . . [may only be altered by agreement] [must not be altered . . .]

9. During each of the first to the third year of continuous full-time employment an employee shall earn entitlements to vacation calculated on . . . Better: During each of the first to the third year of continuous full-time employment an employee earns entitlements to vacation calculated on . . .

If you take the trouble to think about alternatives to shall you will find your documents become sharper because you have to think about the specific meaning shall is intended to convey. Try it!

Conclusion

So what's the point in getting rid of a few shalls, a couple of provided thats, an and/or or two, and breaking up some sentences? Here's why:

1. The rewriting improvements pay for themselves if they prevent just one lawsuit, or one claim of negligent or unprofessional drafting
2. Rewriting legal documents in plain language virtually guarantees the document will become shorter. Think of the efficiency in not having to read extra words - not just once but every time anyone reads the document.(13)
3. Instead of reading like a law journal, or worse, your legal documents will be as easy to read as a current affairs magazine.

1. People are more likely to read the document, understand it, comply with it, and respect the result.

End Notes

1. A judge of the Manitoba Court of Queen's Bench decided that a limitation of liability clause in a courier contract was "legal gobbledygook" that didn't protect the courier when the courier lost its customer's parcel. The judge determined that the customer did not have reasonable notice of the limitation clause. The judge stated in his decision that "Notice cannot be said to be reasonable, in my view, when the clause is neither legible or capable of comprehension". Aurora TV and Radio Ltd. v. Gelco Express Ltd. An unreported decision of Judge Oliphant in the Manitoba Court of Queen's Bench (Small Claims Practices Act) dated May 10, 1990.
2. Legalese is defined by the Canadian Bar Association and Canadian Banker's Association Joint Committee Report, The Decline and Fall of Gobbledygook: Report on Plain Language Documentation (1990) as a style of writing used by lawyers that is incomprehensible to ordinary readers.
3. In one agreement the words "herein", "hereof", and "hereunder" were defined as follows: (C) "herein", "hereof" or "hereunder" and similar expressions when used in a section shall be construed as referring to the whole of this agreement and not to that section only. See Metis Settlements Act, Schedule 3, Article 103 (c).
4. See endnote 1.
5. Richard C. Wydick: Should Lawyers Punctuate, The Scribes Journal of Legal Writing, Vol 1, 1990, p10
6. See Dr. Elmer Driedger: The Composition of Legislation, (1976) Department of Justice, 93, and Commissioner of Stamp Duties v. Atwill [1973] A.C. 558 (PC)
7. For further discussion on "and/or" see Robert C. Dick, Q.C., Legal Drafting (2d) Carswell, 1985, 104; E.L. Piesse, The Elements of Drafting, (6th) Law Book Company, 1981, 103; David Mellinkoff, The Language of the Law, Little Brown and Co., 1963, 147.
8. Louis-Philippe Pigeon, Drafting and Interpreting Legislation, Carswell, 1988, 44
9. State v Dudley, 1959, La, 871, 879.
10. For further discussion on this topic see 63 Austl LJ 75 (1989); 63 Austl LJ 726 (1989); 63 Austl LJ 860 (1989); 63 Austl LJ 522 (1989); 64 Austl LJ 168 (1990); Joe Kimble, The Scribes Journal (3 Scribes J Legal Writing (1992); with a response from Michele Asprey in 3 Scribes J Legal Writing 79 (1992); Bryan Garner, A Dictionary of Modern Legal Usage (2d) under the heading Words of Authority 939; and Robert C. Dick, Legal Drafting, Carswell (2d), 1985, 89.
11. Professor David Mellinkoff, Dictionary of American Legal Usage says: may and shall in legal writings are so frequently treated as synonyms that the grammatical standard (may = permitted; shall = required) cannot be considered the legal standard. Context and interpretation so easily overwhelm either word.
12. One Court made these comments about the use of the word "must" The word is a common imperative. It is hard to think of a commoner. There is no dictionary of stature of which I am aware that accords to the word any other connotation. In its present or future tense it expresses command, obligation, duty, necessity and inevitability. In contrast the word "shall" is an equivocal word that can either express a command or a simple futurity. Since "must" bears only one meaning, an imperative one, it is inappropriate and unnecessary to search in the context for something that strengthens it. There may however be a provision in the collective agreement that weakens its effect, in the sense that relief may be granted from an omission to obey. That would not change the word's meaning only its effect. UAW and Massey-Ferguson Industries (1979), 23 or 2d 56 (Div Ct).
13. Plain language documents do not necessarily mean shorter documents – sometimes a longer explanation is needed to explain a complex subject. However, most legal documents have so many wasted words most would be significantly reduced by a plain language rewriting, usually by more than 20%.