Panel takes aim at use of ‘shall’ in laws

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The Boyd-Graves Conference says it’s time to end the confusion over the different meanings ascribed to the word “shall” in Virginia statutes and rules. The solution the panel offers is to eliminate that word altogether in new law and use a precise intended term, such as “must” or “may.”

The conference – an annual symposium that recommends improvements for civil litigation – voted unanimously to start work on eliminating new uses of “shall” in both the Virginia Code and the Rules of Court.

An eight-member Boyd-Graves committee cited commentators and legal scholars who describe the use of “shall” as “the biggest troublemaker,” “slippery” and a “creator of booby traps.”

The committee backs the so-called ABC Rule – a reference to Australian, British and Canadian scholars who endorsed the elimination of “shall” altogether.

“Drafters can’t be trusted to use it correctly, so – don’t use it at all,” is the philosophy, according to committee chair Stuart A. Raphael.

“There is a significant concern among skillful writers and editors that the word ‘shall’ is best avoided altogether,” added Regent University Law Prof. James J. Duane, another committee member.

Ambiguities

The committee pointed to ambiguous uses of “shall” in the Virginia Code and the Rules of the Supreme Court. In Rule 1:8, for instance, the panel said “shall” is used interchangeably in the same paragraph to mean “must,” “may,” “will” and “should.”

In Rickman v. Commonwealth (VLW 017-6-106) last year, the Supreme Court held that use of the word “shall” can vary depending on whether it is used in a “mandatory” versus a “directory” statute. The committee said more careful drafting of the statute could have avoided the interpretative controversy.

ABC Rule

In endorsing the elimination of “shall,” the committee adopted the ABC Rule, and the Boyd-Graves Conference as a whole agreed.

The alternative is the “American Rule” which “holds out hope that lawyers and legislative drafters get it right. It requires shall to be used only to connote a mandatory duty or obligation,” according to the committee’s presentation to the full Conference.

“Eliminating shall as an option forces the drafter to use the more accurate terms, such as must, may, will, should, is, or is entitled to, or to tighten the text to avoid using shall altogether,” the committee wrote.

The approach is similar to that taken with the federal rules, Raphael said.

“It worked for the federal rules. They work a lot better as a result,” he said.

Prospective application

Despite its resolve that “shall” is to be avoided, the committee did not propose a rewrite of the entire code and rules to apply the ABC Rule. The task would be “Herculean,” the panel said.

“The more prudent alternative is to apply the rule prospectively as new rules and legislation are drafted and existing Code provisions revised,” the committee’s Aug. 16 memo said.

The plan for the committee now is to publicize the recommendation to the bench and bar and designate a working group to coordinate with the Division of Legislative Services, the Code Commission and the Virginia Rules Advisory Committee to formulate a long-term plan.

Code Commission

There could be some resistance or misunderstanding at the Code Commission, where the topic was discussed Oct. 15.

“I did not see a great deal of enthusiasm for it,” said commission member E.M. Miller Jr., the former director of DLS.

Perhaps the committee’s proposal was misconstrued as a project to seek and destroy every use of “shall” throughout the code.

“We decided we’re not going to undertake that,” said Sen. John S. Edwards, the Code Commission chair. The task would be both “overwhelming” and “unnecessary,” Edwards said.

But the committee does not propose wholesale replacement of every use of “shall,” Duane said, noting it would require close study in every instance to make sure a replacement word would not change the law. He said an effort to make stylistic changes in federal rules accidently changed the meaning of a rule, an error later corrected after he wrote a law review article about the “perils of stylistic revision.”

But avoiding “shall” in all future drafting is possible, Duane said.

“I am optimistic that it can and will be done,” he said.

“We believe that following the ABC Rule will lead to greater clarity, improve the readability of laws, and reduce litigation over ambiguous text,” the committee concluded.