Wednesday, September 28, 2016
Legal writers would do well to abandon the use of the ambiguous word "shall" that we find so often in statutes, regulations, contracts, and other documents. It should be removed and replaced by other words such as "must" or "will" or "should" or other words that would more readily communicate whether a provision was mandatory or merely a suggestion or a directive. Professor Joe Kimble of the Thomas Cooley Law School did this with the Federal Rules, taking out every instance of the word shall (except for one that got put back in because the drafters could not decide whether it was mandatory or merely a suggestion).
One recent example comes now from the Illinois Supreme Court decision People v. Geiler, 2016 IL 119095, 405 Ill. Dec. 123 (Ill. July 8, 2016) where the court rule directing transmission of traffic citations to the circuit court clerk within 48 hours of being issued was found to be directory, rather than mandatory.
If we ever counted how many hours and how much money has been spent litigating over the meaning of the word "shall," we would quickly abandon further use of that word in our legal writing. We shall see.