A common misstep in legal drafting is thinking of the future instead of the present. To clarify: yes, lawyers of course need to think ahead. Transactional lawyers and other drafters must anticipate issues, contingencies, and remedies. In fact, that’s when a lawyer’s experience and insight are at a premium.

Yet the document that emerges from a lawyer’s careful forethought, negotiation, and drafting should speak to the present.¹ Once the document is activated — the contract signed or the law effective — it should have currency, immediacy. More simply, a well-drafted document is alive in the present whenever a user consults it.

One of our profession’s historical tics has been to reflexively express policies in a shall-based future tense, as in “the Carrier shall have no liability for delays caused by inclement weather.” This version of shall is, in essence, a hybridized blurring of future tense with a bogus duty signal. It’s inapt and overwrought.

I’m using the word “policy” broadly to mean some truth or legal fact — perhaps a consequence or lack of consequence — that contracting parties have agreed to or that a legislature, agency, or board of directors has settled on. A drafter’s default style should be present tense for these policy expressions.

Consider this redraft of my earlier example: “The Carrier is not liable for delays caused by inclement weather.” The parties have agreed to this policy. And if, four years after the contract’s signing, the carrier is delayed by a severe snowstorm, a party curious about the potential consequences will pick up the contract at that moment and see the answer: “The Carrier is not liable . . . .” This calls for present tense. There’s no future about it. And because this provision does not impose a duty, no duty word (whether shall or must) should appear.

You’ll see this present-tense preference from preeminent drafting experts. Consider Joseph Kimble’s present-tense style in the federal rules. Under FRE 402, irrelevant evidence “is inadmissible” — not “shall be inadmissible” or “shall not be admissible.” Under FRE 408, evidence of liability insurance “is not admissible” to prove negligence. Under FRCP 21, “[m]isjoinder of parties is not a ground for dismissing an action.” Under FRCP 23(f), an appeal in a class-action case “does not stay proceedings in the district court unless the district judge or the court of appeals so orders.”

Contract-drafting experts also embrace the present tense — and shun shall — when stating policies. Ken Adams advises, “Don’t use shall in language of policy” because language of policy “doesn’t impose obligations.”² An example from his manual’s sample contract:

• "The initial term of this agreement ends at midnight at the end of 31 December 20__ . . . .”³ [not “shall end” or “will end” at midnight]

And in definitions:

• "'Continuing Director’ means any person who . . . .”⁴ [not “shall mean”]

Adams’s sample contract uses shall only — only — for imposing duties.⁵ As many have pointed out before me, if a drafter can’t logically replace shall with “has a duty to” or “is required to,” then the shall should go.⁶

Bryan Garner’s manual shows the same present-tense approach, even when the parties’ policy term concerns a future contingency:

• "If a court for any reason holds a provision . . . to be unenforceable, the rest remains fully enforceable.”⁷ [not “shall hold” or “shall remain”]
• "Melroy is not liable . . . for any incidental or consequential damages . . . .”⁸ [not “shall not be liable”]

Another example from Garner’s sample contract:

• "Information is not confidential if the disclosing party approves it for release without restriction . . . .”⁹ [not “shall not be deemed confidential”]

For these reasons and the reasons you’ll see below, the shall-free present tense is a sound default style for policy expressions. The sloppy, indiscriminate¹⁰ use of shall only invites confusion.¹¹ Present tense allows documents to speak clearly about present truths and even future possibilities — and prevents inaccuracy and wordiness.

Consider a typical contract that I found in my research. It contains 78 shalls. But 44 of those 78 shalls are incorrect. That’s 56% — more than half the shalls — that are incorrect for one reason or another. I’ll stay on topic and tackle just the misuse of shall for expressing policies. (I’ve already addressed another shall error — its use in clauses meant to grant discretion — in my May 2023 column.)

Let’s start with definitions. A definition reflects a policy decision concerning a term’s meaning.¹² When we express that policy, it is a fact that holds true in the present whenever someone reads that definition or defined term. Nevertheless, we often see wordy, future-facing shall definitions: “‘Pool Area’ shall refer to the pool, patio, and pavilion.”

Appropriate definitional verb choices are present-tense expressions: means (for a full definition); includes (for a partial, enlarging definition); does not include (partial, limiting). Shall has no place in any of them.¹³

Below are examples from the form contract I studied. With a few exceptions, my suggested edits are limited to the misused shalls:

• "'Edition,' as used in this Agreement, shall refer to the Work as published in any particular content, length, and format.”
  [Edit: “Edition” means the Work as published in any . . . .]
• "'Electronic Edition,’ as used in this Agreement, shall refer to any Edition of the Work that is sold, distributed, or accessed in an electronic or digital format . . . .”
  [Edit: “Electronic Edition” means any Edition of the Work that is . . . .]

For other types of policy expressions, we can cure false shalls by using the main verb’s present tense or by using an is construction:

• "The Author acknowledges and confirms that the Publisher shall have no liability of any kind for the loss or destruction of . . . .”
  [Edit: The Publisher is not liable for . . . .]
• "The date of publication as designated by the Publisher . . . shall be the ‘Publication Date’ for all purposes under this Agreement.”
  [Edit: . . . is the “Publication Date” for all purposes . . . .]
• "Nothing contained in this section shall be construed as limiting, modifying, or otherwise affecting . . . .”
  [Edit: Nothing in this section limits, modifies, or otherwise affects . . . .]
  [Edit: Nothing in this section alters . . . .]
• "This Agreement shall be binding on the heirs, executors, administrators, successors, and assigns of the Author . . . .”
  [Edit: This Agreement binds the Author’s heirs . . . .]
• "All rights not expressly granted to the Publisher shall be wholly reserved by the Author.”
  [Edit: . . . are wholly reserved . . . .]
  [Better (active voice): The Author reserves [retains?] all rights not granted to the Publisher.]
• "[T]he Publisher has no obligation to initiate litigation on such claims, and shall not be liable for any failure to do so.”
  [Edit: The Publisher . . . is not liable for . . . .]
• "Upon the expiration or termination of this Agreement, any rights reverting to the Author shall be subject to all licenses and other grants of rights made by the Publisher . . . .”
  [Edit: . . . are subject to . . . .]

Sometimes a misused shall is surplus in the truest sense. Removing the shall is an easy first edit in these examples (which desperately need more edits beyond that):

• "The provisions of this Agreement shall apply to each revision of the Work by the Author . . . .”
• "Any and all rights of the Publisher under such licenses and grants of rights . . . shall survive the expiration or termination of this Agreement.”
• "Notwithstanding any editorial changes or revisions by the Publisher, the Author’s warranties and indemnities under this Agreement shall remain in full force and effect.”
• "[A]nd upon such repayment, all rights granted to the Publisher under this Agreement shall revert to the Author.”

Although I’ve focused on policy expressions here, my best advice for shall adherents is more broad-sweeping: if you aren’t imposing a duty, don’t use shall. Experts who tout shall as a legitimate term of art give the same advice.¹⁴ Every misused shall burdens a document with more words and less clarity.