Shall I Compare Thee to a Summer’s Day? Probably not.

by Ian Pisarcik, Legal Publications Attorney Editor

The writer David Foster Wallace was so fond of words that he used to lie awake for hours reading the dictionary and circling the ones he liked best: Maugre, Tarantism, Ruck, Sciolism, Primipara. He is a man who once wrote “I do things like get in a taxi and say, ‘The library, and step on it.’” His desire to use uncommon words was matched by his desire to know the meaning of those uncommon words. Many lawyers, it seems at times, share only the first desire. Nowhere is this more evident than in the enduring use of the word shall.

Lawyers rely heavily on the word shall, and while the most common interpretation of the word is that it denotes a mandatory action (i.e., must), lawyers do not consistently use it this way. As lawyer and lexicographer Bryan Garner points out, “that’s why courts in virtually every English-speaking jurisdiction have held—by necessity—that shall means may in some contexts, and vice-versa.” Let’s look at some examples, shall we?

  1. “No person shall operate a motorboat at a speed greater than is reasonable.” If shall means must, then this sentence is telling us that no person must operate a motorboat at a speed greater than reasonable. In other words, you’re not required to operate a motorboat at a speed greater than is reasonable, but if you want to, knock yourself out. This is clearly not the intended meaning. What the author is trying to say is: “No person may operate a motorboat at a speed greater than is reasonable.” In other words, you are not allowed to do this.
  2. “The sender shall have fully complied with the requirement to send notice, when the sender obtains electronic confirmation that the transmission has been received.” Is shall denoting a mandatory action here? Of course not. The sentence is simply defining when the sender has fully complied: “The sender has complied . . . when the sender obtains electronic confirmation. . .”
  3. “The agreement shall be terminated.” A duty must be imposed on a capable actor. An agreement is not a capable actor. What this sentence is intended to mean is that the agreement is terminated (presumably by someone or some action, but that’s a post for another day).

The word shall is rarely used consistently throughout a legal document. And the result is that, as Garner puts it, “the word breeds litigation.” According to Garner, the multivolume Words and Phrases, published by Thomson Reuters, contains 107 pages of small-type cases interpreting the word shall. Garner hoped to cut down on some of this litigation when he revised the civil, appellate, and criminal federal rules, and dropped the word shall completely. The editors at the Oregon State Bar have chosen to do the same. We shall banish the word from our vocabulary, and don’t get us started on witnesseth . . .