In my recent article advocating disciplined use of shall I mention that I haven’t seen any evidence of a flight from shall.
At any given time individual lawyers, or groups of lawyers, or conceivably entire organizations, might eschew shall. But I have a hard time imagining that it could be commonplace for any group of lawyers—a notoriously free-spirited bunch—to proscribe use of shall by the entire group. (Let’s leave aside the fact that it would be a counterproductive move on their part to do so.)
And I doubt the picture is static. For example, someone who read my article—a lawyer at a large public company—told me that although her group had rooted it out of their contracts years ago, she’s seriously considering restoring shall.
Of course, one problem with making pronouncements regarding who does or doesn’t use shall is that it’s not entirely clear how one goes about effectively monitoring that.
For example, I recently heard someone cite by name some companies and one law firm—a multi-office U.S. law firm—that had foresworn use of shall. I was particularly intrigued by the notion of a law firm making such a pledge—it seemed unlikely, given what I know of how lawyers at law firms go about drafting contracts. And I thought I could take a peek at how that law firm actually uses or doesn’t use shall.
I explored those contracts filed on the SEC’s EDGAR system since 1996 that refer to the law firm in question as having represented one or more of the parties. That amounts to hundreds of contracts. And they all use shall. I reviewed a few of the more recent ones, and their use of shall seems consistent with mainstream contract drafting’s problematic use of shall.
Making assumptions regarding who came up with the language of a given contract is always an uncertain proposition. Even if you’re reasonably confident which side in a given transaction handled the drafting, the law firm representing that side might at the request of its client have used a contract model supplied by the client rather than one of its own.
Nevertheless, I think it’s reasonable to assume that the law firm in question was responsible for the language in some of the hundreds of contracts I found on EDGAR. So whatever the drafting habits of individual lawyers in that firm, to the outside observer peeking through the EDGAR keyhole it would seem to be squarely in the mainstream in its use shall. Perhaps a different perspective would yield a different conclusion.
In any event, I see no indication of an anti-shall groundswell.