By Deborah Hopkins, January 17, 2018
It’s every legal writer’s conundrum: when writing a legal document, which word of the following is the strongest to use, imposing a mandatory requirement on the recipient of the document:
The answer? D.
The only word of obligation from the list above is must – and therefore, the only term connoting strict prohibition is must not. The interpretation of everything else is up for debate.
Don’t believe me? You don’t have to take my word for it. Just about every jurisdiction in this great country has held that the word shall, while the most often used of the above, is also the most confusing because it can mean may, will, or must. Our very own U.S. Supreme Court has interpreted the word to mean may. In fact, it’s so confusing that the Federal Rules of Civil Procedure no longer use the word at all.
We quote Bryan Garner, one of our favorite authors, quite a lot during our legal writing classes because the guy just gets it; he understands what it means to beat your head against a wall trying to get a legal document just right, and understands that sometimes one word can alter the meaning of an entire sentence, paragraph, or document. On the topic of today’s article, he says, “In most legal instruments, shall violates the presumption of consistency…which is why shall is among the most heavily litigated words in the English language.” Hahaha. Nothing like lawyers to make black and white seem like all the shades of gray. Isn’t this a fun business we’re in?
To be fair, it’s not really our fault that this confusion exists. We can blame our law school professors: until just a few years ago, even the top tier law schools were teaching students that the word shall means must. The Federal Plain Writing Act only clarified this in 2010, and clearly a lot of us didn’t get the note. Props to the FAA, though, as it was the first agency to bring this topic to our attention.
So, realizing that words that sound alike may have very different meanings, let’s look at an example from a hypothetical EEO settlement agreement:
A. The agency shall return the complainant to her previous position as a GS-4 File Clerk and the complainant shall withdraw her complaint.
B. The agency will return the complainant to her previous position as a GS-4 File Clerk and the complainant will withdraw her complaint.
C. The agency may return the complainant to her previous position as a GS-4 File Clerk and the complainant may withdraw her complaint.
D. The agency must return the complainant to her previous position as a GS-4 File Clerk and the complainant must withdraw her complaint.
Yep, I’m going with D. Remember, when you want something to be mandatory – like a settlement agreement that requires both sides to do something – use the word must instead of shall, and you’ll have a document that carries with it a firm legal obligation. For more on this topic see the Federal Plain Language Guidelines (page 25) and the Federal Register Document Drafting Handbook (Section 3).
And if you really can’t get enough of this stuff, join us for this upcoming writing workshop in Washington, DC: Writing for the Win: Legal Writing in Federal Sector EEO Cases (May 8-10).
And now, I must go. Hopkins@FELTG.com