Legal Drafting: Replace “Shall” with “Must”

I have to admit that this has become a bit of a fetish with me. In my 28 years as a city attorney (for three small towns, and a fourth for about my final 15 years of practice), I did a lot of legal drafting: ordinances, resolutions, and contracts, among other things. I also had to read such legal documents, and for the most part, the documents were written abominably. Sometime during the course of my career, I discovered that the U.S. government (yes, you  read that correctly) developed guidelines for writing in plain English. I found those guidelines quite helpful,  and I shared them within my office. In the world of easy cut and paste drafting, it seemed a losing battle, but I still fight it. Today in revising a memo written by a young lawyer, I went after the “shall” language. I can’t change the statute (legislatures should), but when summarizing requirements for a client, there’s no need to continue this bad habit of using “shall” when a more direct and imperative “must” will do. Say it aloud: “I shall not use it again!”. I sent the following to the young lawyers that I work with that I retrieved from–yes–my friends with the U.S. government.

 

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