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Rules panel proposes dumping the word ‘shall’

The legal community is being asked to weigh in on a plan to ditch the use of the word “shall” in the Virginia Rules of Court.

After a Boyd-Graves study last year recommended elimination of “shall” in both the state code and in court rules, the Advisory Committee on Rules of Court now is moving forward on the rules portion of that recommendation.

The panel has produced a 450-page PDF version of the Rules of the Supreme Court of Virginia with proposed changes highlighted. The committee is asking the bench and bar to comment by July 12.

According to an April 12 announcement, the Advisory Committee, which reports to the Judicial Council, resolved at its March 2019 meeting to publish the possible rules revisions addressing the ambiguous nature of the word “shall” in the rules.

The published examples illustrate edits aimed at eliminating almost all uses of the ambiguous word “shall,” the panel said. The revisions would replace uses of “shall” with its actual meaning, which can be any one of several concepts: such as “must,” “may,” “will,” “should,” “is,” or “is entitled to,” the committee said.

Committee members reportedly looked at the same materials gathered by the Boyd Graves Conference in studying the issue. There is a large collection of commentary and numerous examples of rule-drafting guidelines from other jurisdictions targeting the ambiguous use of “shall.”

“They note that legal commentators and scholars have long recognized that the word shall is inherently ambiguous. It could mean something mandatory and obligatory (‘must,’ ‘is required to,’ ‘is entitled to’), or something permissive (‘may,’ ‘should’). It could mean a statement of future action (‘will’). Or it could mean simply the present tense (‘is’),” the committee said.

“The overwhelming majority of commentators and legal scholars recommend that rules drafters avoid uses of shall,” the advisory committee said, adding the word has been described as “the biggest troublemaker,” “slippery,” and the creator of “booby traps”; “the most misused word in the legal vocabulary”; and “flimsy.”

The Boyd-Graves Conference recommended a halt to all use of shall in future lawmaking.

“Drafters can’t be trusted to use it correctly, so don’t use it at all” was the B-G philosophy, according to committee chair Stuart A. Raphael, quoted in November.

Over the past 12 years, federal rules drafters have rewritten each set of federal procedural rules (civil, criminal, bankruptcy, appellate, evidence) to remove “shall” and substitute a more direct statement of how the rule is intended to operate, the rules committee said. The revised federal rules have generated neither controversy nor confusion, the panel said.

Comments on the draft rule revisions should be sent to proposedrules@vacourts.gov by July 12.

The postal address is: Steven Dalle Mura, Director of Research, Office of the Executive Secretary, Supreme Court of Virginia, 100 North Ninth Street, Richmond, VA 23219

The Boyd-Graves study recommended addressing the use of “shall” in the Code of Virginia, as well as in the rules. Possible code revisions could be considered by the Code Commission this spring, according to a legislative staffer.