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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Besides being outdated, “shall” is imprecise.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
is required to is required not to, is not allowed has discretion to, is permitted to is not permitted to ought to future contingency	must must not may may not should will

The following example demonstrates how much clearer language can be if you follow these suggestions.

Don’t say	Say
Section 5511.1 Free Use of Timber on Oil and Gas Leases Any oil or gas lessee who wishes to use timber for fuel in drilling operations shall file an application therefor with the officer who issued the lease. The applicant shall be notified by registered mail in all cases where the permit applied for is not granted, and shall be given 30 days within which to appeal such decision. Where the land is occupied by a settler, the applicant shall serve notice on the settler by registered mail showing the amount and kind of timber he has applied for.	Section 5511.1 Free Use of Timber on Oil and Gas Leases You must file an application to use the timber on your oil or gas lease for fuel. File the application with our office where you got your lease. We will notify you by registered mail if we reject your application. You must file an appeal of that decision within 30 days. You must notify any settler, by registered mail, that you have applied to use timber from your lease. Include in your notice the amount and the kind of timber you intend to use as fuel.

Don’t say

Say

Section 5511.1 Free Use of Timber on Oil and Gas Leases

Any oil or gas lessee who wishes to use timber for fuel in drilling operations shall file an application therefor with the officer who issued the lease.
The applicant shall be notified by registered mail in all cases where the permit applied for is not granted, and shall be given 30 days within which to appeal such decision.
Where the land is occupied by a settler, the applicant shall serve notice on the settler by registered mail showing the amount and kind of timber he has applied for.

Section 5511.1 Free Use of Timber on Oil and Gas Leases

You must file an application to use the timber on your oil or gas lease for fuel. File the application with our office where you got your lease.
We will notify you by registered mail if we reject your application. You must file an appeal of that decision within 30 days.
You must notify any settler, by registered mail, that you have applied to use timber from your lease. Include in your notice the amount and the kind of timber you intend to use as fuel.

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, 2^nd 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, 5^th edition, 2005, Carolina Academic Press, Durham, NC, p. 64.

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