We Shant Say Shall
and/or Other Lawyer Malapropos
My really big dictionary1 says shall is only used to
denote simple future time, as in “plan to, intend to, or expect to.” Like
all really big dictionaries, it includes the word among the other 7. 7 million words tightly bound inside a fake corduroy dust jacket that is more
shab2 than shant. It’s a big tent thing, like you know; it totally consumes
but is scantily clad. 3 Dictionaries are always diplomatic, polite even.
Random House, Webster and Wikipedia all give shant scant notice, but
prefer its negative use, especially when expressed as a contraction—
“shant.” Now that’s an improvement. Lawyers’ shant use shall. And shab
them that does. Try saying that 15 times as fast as you can.
It is frowned on in formal writing in all other professions, except law.
Random House diplomatically, albeit passively, says, “Generally, in ordinary speech, shall has fallen into disuse.” As well, it should. Alas, it will
likely remain in limited use, as long as lawyers write to confuse, rather
than to inform.
Bryan Garner4 is less diplomatic. He says it is “not plain English and
should never be used, except for lighthearted questions that begin, ‘Shall
we.’” Lawyers inappropriately use it to mean “has a duty to,” but it
almost never means this when it’s preceded by a negative word such as
nothing or neither. The true meaning in almost every case is may. May
always means shall, but shall almost always is mistaken for “mandatory,”
and when thusly5 misused, does not mean that at all. Even the U.S.
Supreme Court, in writing an opinion I call In Re Shall vs. May, held
that a legislative amendment from shall to may has no substantive effect. 6
I’ve always suspected the Court would ban the word if it could, just to
lighten its caseload.
English comes in several forms—British English, American English,
Legal English, Fractured English, Playground English, and so
on. Lawyers love fractured provisos, and/ors, buried verbs,
and my personal favorite, a preposition we pronounce as “ov,”
but spell “of.” Take and/or, please. I’d be happy if all lawyers
dispatched of into the same virtual recycle bin as shall. If all
shalls, and/or, of, and provisos disappeared from our writing,
we would astound clients, impress judges, and move up an
inch or two on the Craigslist ov things for sale.
Among legal writing’s seven deadly sins is the odious little
“and/or” that creeps into motions like a bog. The
more you use it, the swampier it gets. At best, you
don’t need it; at worst, it can be positively dangerous. About half the time, and/or really means
or. The other half the time it means and. Who
knew? If the sign on the front door to the library
says, “No food and/or drink allowed,” that doesn’t suggest you are not allowed to have both. If
the rare law books room is marked, “Lawyers
and/or law students are not allowed beyond this
point,” it does not mean that a lawyer may proceed alone. The danger in and/or is that the
adversarial reader can often give it a skewed meaning, as I just did in the library sign simile.
So if you don’t want more grumbling
from me, or the Supreme Court, give up
shall, and stanch7 and/or. They are, after all,
legal writing’s orange flamingos. AZ AT
GARY L. STUART is a 43-year member
of the Arizona bar, a seasoned trial lawyer
and a prolific author. He has written six
books and scores of law review articles,
CLE monographs, essays, op-ed pieces,
and short stories. He is the Senior Policy
Advisor at ASU’s Sandra Day O’Connor
College of Law, and a member of its
adjunct faculty. He teaches appellate
advocacy, ethics, and a course he calls
“Creative Writing for Lawyers” (which he
insists is not oxymoronic).
1. The 2,059 page Random House Dictionary of
the English Language (1966) contains approximately 7,721,253 words.
2. As in “to shab,” meaning to play mean tricks;
a low, barbarous, cant word, as Samuel
Johnson would surely have put it, in the
world’s first dictionary in 1755.
3. Just because we are lawyers doesn’t mean we
have a roving commission to ostentatiously
split infinitives, or adverbs.
4. Author of Legal Writing in Plain English,
University of Chicago Press, A Dictionary of
Modern Legal Usage, and Editor-in-Chief of
Black’s Law Dictionary (7th Ed.), and a good
many more widely used legal reference books.
5. “Thusly” is another one of those lawyer words
designed to confirm that we understand everyone but expect no one to understand us. It
should be used in passive voice and only in
sealed documents, and even then, only when
the sealing order comes from very young
judges who can be counted on to never unseal
6. Moore v. Illinois Cent. Ry., 312 U.S. 630, 635
(1941). “It is significant that the comparable
section of the 1926 Railway Labor Act ( 44
Stat. 577, 578) had, before the 1934 amend-
ment, provided that upon failure of the parties
to reach an adjustment a ‘dispute shall be
referred to the designated Adjustment Board
by the parties, or by either party.’” This differ-
ence in language, substituting may for shall,
was not, we think, an indication of a change in
policy, but was instead a clarification of the
law’s original purpose. Never mind that the
case was later reversed on the merits. This
column shant deal with the
7. In case you wondered,
“stanch” is a medical term
doctors use rather than stop,
like sailors use belay, and
scholars use intermit. These
are in Eugene Ehrlich’s
Highly Selective Thesaurus for
the Extraordinarily Literate
(Harper Collins Publishers,
1994). It’s not a book written
for blokes like me, so I borrowed Tim Eigo’s copy just
to write this column.