Wayne Schiess's legal-writing blog. Home is here: Legalwriting.net
Some have a love affair with shall.
For example, they change this statement "A Service Award is credited to the account of a participating member" to "A Service Award shall be credited . . ."
Here's another example: "Eligible members earn Service Award points" becomes "Eligible members shall earn . . ."
Is this good drafting?
[Plain language] has a bad name among some lawyers. This is usually because they don't understand enough about it to judge it properly. --Michele M. Asprey, Plain Language for Lawyers 11 (2d ed., Federation Press 1996).
A related bonus of a plain language style is the potential for reducing mistakes. Traditional legal language tends to hide inconsistencies and ambiguities. Errors are harder to find in dense and convoluted prose. Removing legalese helps lay bare any oversights in the original. --Peter Butt & Richard Castle, Modern Legal Drafting: A Guide to Using Clearer Language 89 (Cambridge U. Press 2001).
4 Comments:
Shall adds nothing to these descriptions of the operation of the program. As I understand it, shall is best used as a command to a person: "If the evidence raises a defense, the judge shall instruct the jury regarding the defense." Or, "The officer shall . . . interfere without warrant to prevent or suppress crime. . . ." Similarly, "investigators of the United States shall not be deemed peace officers, but shall have the powers of arrest, search, and seizure . . . ." gains nothing from the word shall. I would rewrite it: "investigators of the United States are not peace officers, but have the powers . . . ."
Apparently, lawyers are not alone in their sometimes irrepressible obsession with "shall." The Institute of Electrical and Electronic Engineers, which establishes widely-followed standards for the drafting of software specifications, admonishes its members to use "shall" to indicate mandatory requirements in lieu of "must" or "will":
"The word shall is used to indicate mandatory requirements strictly to be followed in order to conform to the standard and from which no deviation is permitted (shall equals is required to). The use of the word must is deprecated and shall not be used when stating mandatory requirements; must is used only to describe unavoidable situations. The use of the word will is deprecated and shall not be used when stating mandatory requirements; will is only used in statements of fact."
[http://standards.ieee.org/guides/style/section5.html]
Huh?
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