Shall

Many legal-writing authorities, most notably Bryan Garner, recommend eliminating use of the word shall in legal drafting, due to the word’s overuse and potential ambiguity.¹ Ken Adams disagrees. While he acknowledges that shall is overused, he thinks the better solution is more disciplined use of the word. He outlines his views in a recent article for the New York Law Journal. You can read the article in PDF or (at least for now) in HTML.
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¹ Bryan A. Garner, A Dictionary of Modern Legal Usage 939–41 (2d ed. 1995).

Comments

[H Devaraja Rao, Bangalore, India]

Shall has become controversial in the battle between the traditional legal writers and the modernists. Tradionalists believe the word is well understood and widely accepted as expressing legally binding force. The modernists say that the ordinary folk regard shall as equivalent to will—the future tense.(1)

In normal English (which happens to be grammatically correct), we say ‘if the solicitor loses his pen he will have to use another one.’ But lawyers wrongly insert shall: ‘if the solicitor shall lose his pen.’ To put it in a more likely context, lawyers tend to write: ‘if the Tenant shall go into liquidation…’ In fact, we should follow normal English and say: ‘if the Tenant goes into liquidation.’(2)

Finally, to show how entrenched shall is in legal writing: “This is the third series in my Judges Miscellany… I hope this volume shall also be found interesting.” (3)

(1)Dr Cutts, Making Sense of English in Law
(2)Murray J Ross, Drafting and Negotiating
Commercial Leases
(3)Justice M Hidayatulla, in his Preface to A
Judge’s Miscellany.