For the past several years, Virginia has been not-so-secretly engaged in a timeless legal tradition: arguing over the word “shall.”
“Shall” is shifty. Is it a permissive “may”? A mandatory “must”? Like so many other questions that give us lawyers added job security, the answer is: it depends. Countless cases have been borne of the confusion and our stubborn persistence in using the word—in contracts, statutes, corporate documents—when we shouldn’t. And for years, countless legal writing experts, commentators, and jurists have been begging the rest of us to stop using it. Bryan Garner puts it succinctly in his Legal Writing in Plain English: “Delete every shall.” (2nd. ed. 2013; § 35.)
The Supreme Court of Virginia has navigated the ambiguity in this way: the meaning of “shall” turns on whether the statute itself could be viewed as mandatory or directory. Does it provide a specific exclusive remedy (mandatory), or empower the court to tailor a remedy itself (directory)? This test is why, for example, a statute requiring that a copy of the jury venire panel “shall” be given to counsel 48 hours before trial…only kinda sorta requires that. Butler v. Commonwealth, 264 Va. 614 (2002).
For several years now, Virginia has been at work purging itself of the wretched “shall”; or, at least, the bar and judiciary have. In 2018, a committee of the Boyd-Graves Conference unanimously agreed that the word is inherently ambiguous and should be avoided. The committee recommended avoiding the word entirely. If you’re a word nerd like me, their report summarizes the issue and commentary well. My favorite part: noting the many meanings of “shall” in (former) Rule 1:8:
shall may be made to any pleading after it is filed save by leave of court. Leave to amend shall should be liberally granted in furtherance of the ends of justice. Unless otherwise provided by order of the court in a particular case, any written motion for leave to file an amended pleading shall must be accompanied by a properly executed proposed amended pleading, in a form suitable for filing. If the motion is granted, the amended pleading accompanying the motion shall will be deemed filed in the clerk’s office as of the date of the court’s order permitting such amendment. If the motion is granted in part, the court may provide for filing an amended pleading as the court may deem reasonable and proper. Where leave to amend is granted other than upon a written motion, whether on demurrer or oral motion or otherwise, the amended pleading shall must be filed within 21 days after leave to amend is granted or in such time as the court may prescribe. In granting leave to amend, the court may make such provision for notice thereof and opportunity to make response as the court may deem reasonable and proper.
Statutory examples abound as well. At the time of the Committee’s recommendation, the Virginia Code Commission expressed…reluctance to embark on the editorial excursion needed to clarify Virginia’s statutes.
Meanwhile, the Supreme Court of Virginia went to work. An Advisory Committee on the Virginia Rules of Court studied the issue and, in 2019, the Court circulated proposed revisions to clarify the meaning of “shall” in its Rules. After public comment “generated no controversy among the bar,” the Rules Committee, Judicial Council, and then the Court itself reviewed the revisions and promulgated the changes in November 2020. The revisions eliminated nearly every use of the word “shall” in the Rules of the Supreme Court of Virginia. And the bar is better off for it: Rule 1:8, for example, now reads exactly as proposed above by the Boyd-Graves committee. If seeing that strike-through on ambiguous language fires you up, its revisions are a thrill ride.
When the Code Commission pumped the brakes on similarly scrubbing the Code, there was hope the General Assembly would at least attend to future legislation and avoid ambiguous usage of the word “shall.” After all, their colleagues in the judicial branch across the street had done their part.
How’s that going, you ask?
Not great. The bill expanding appellate jurisdiction and overhauling appeals in Virginia used “shall”… [drumroll]… 852 times.