Use “must” to indicate requirements
The word “must” is the clearest way to convey to your readers that they have to do something. “Shall” is one of those officious and obsolete words that has encumbered legal style writing for many years. The message that “shall” sends to the reader is, “this is deadly material.” “Shall” is also obsolete--when was the last time you heard it used in everyday speech?
Besides being outdated, “shall” is imprecise. It can indicate either an obligation or a prediction. Dropping “shall” is a major step in making your document more reader-friendly. Don’t be intimidated by the argument that using “must” will lead to a lawsuit. Many agencies already use the word “must” to convey obligations. The US Courts are eliminating “shall” in favor of “must” in their Rules of Procedure. One example of these rules is cited below.
Richard Wydick (2005), a noted legal writing scholar, recommends the following substitutions:
To express | Use |
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The following example demonstrates how much clearer language can be if you follow these suggestions.
Don’t say | Say |
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Section 5511.1 Free Use of Timber on Oil and Gas Leases
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Section 5511.1 Free Use of Timber on Oil and Gas Leases
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Many legal scholars have written about the problem of “shall.” Read a brief summary of several arguments at: http://www.plainlanguage.gov/howto/wordsuggestions/shallmust.cfm.
Sources
- Garner, Bryan A., A Dictionary of Modern Legal Usage, 2nd edition, 1995, Oxford University Press, Oxford and New York, pp. 939-42.
- Garner, Bryan A., Legal Writing in Plain English, 2001, University of Chicago Press, Chicago, pp. 105-6.
- Kimble, Joseph, Lifting the Fog of Legalese, 2006, Carolina Academic Press, Durham, NC, pp. 159-60.
- US Courts, Federal Rules of Appellate Procedure, 2005,US Government Printing Office, Washington, DC. http://judiciary.house.gov/media/pdfs/printers/109th/appel2005.pdf.
- Wydick, Richard, Plain English for Lawyers, 5th edition, 2005, Carolina Academic Press, Durham, NC, p. 64.