A Fictional Law-Firm Partner Gets Huffy About “Shall”

Episode 5 of the third season of the U.S. TV show “Suits,” set in a corporate New-York-but-actually-Toronto law firm, features the following exchange between the character Louis Litt, a goofy transactional partner (played by Rick Hoffman), and an associate by the name Simon, after Louis thrusts in Simon’s face an unspecified written assignment that Simon had submitted to Louis:

Louis:   What’s that word?

Simon: “Shall”?

Louis:   At this firm we instruct, we advise, we order, we mmmn must, but we do not shall.

On watching that, I groaned. More fodder for anti-shall trolls!

One shouldn’t expect verisimilitude from “Suits,” or even accuracy. After all, in the same episode, two characters cringingly misattribute to “The Sopranos” a line from, heaven preserve us, “The Godfather Part III.” But Louis’s fit of pique over shall actually manages to reflect reality.

That’s because Simon had transgressed by preparing his assignment in compliance with a memo from another partner at the same firm, one who evidently wasn’t aware of a firmwide ban on use of shall.

I encountered in real life just such an instance of individual rectitude bumping up against messier reality. Around fifteen years ago I heard a legal-writing commentator announce that a substantial law firm, identified by name, had adopted a no-shall policy. A couple of years later I gave a seminar at that firm and asked the lawyers in attendance about that no-shall policy. They had no idea what I was talking about.

Depending on who happens to be calling the shots at a given time, an organization might suddenly develop an aversion to shall, then lose it a few years later. But given that U.S. law firms are bastions of inertia, it’s highly unlikely that any large U.S. law firm would as a matter of policy proscribe use of shall.

(As a reminder, I’m in favor of using shall only to impose an obligation on a party that’s the subject of a sentence, as in Acme shall purchase the Shares. The most complete statement of that approach is contained in MSCD, but it’s also expressed in this 2011 post and in this 2007 article.)

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.