The Legal Writer – The Problem with Shall, by Elizabeth Ruiz Frost, Oregon State Bar Bulletin (February/March)
When we draft legal documents for our clients, we aim to articulate who can do what and when. Those rights and obligations are established through words of authority. But in legal writing, inconsistent use and interpretation of some words of authority can create ambiguity in our documents.
The word shall can be particularly troublesome. Drafters often use shall in place of other words like does, will, should, might or may. If we use shall sometimes to connote a mandatory term, at other times to connote a discretionary term, and once in a while to connote a future event, how can a reader accurately determine our intent? When a word of authority is used inconsistently, courts are left to determine the word’s meaning. To avoid squabbles over ambiguous terms, think through each word of authority that you write and use these words consistently.