How can we make requirements clear?

Elections have been in the news lately, for many different reasons. Here at CCD, we’ve been working on elections for yet another reason – maybe not so newsworthy, but even more important. We want to be sure people can vote safely and privately – confident that they can easily cast the vote they intend.

To reach this goal, we’ve been working on improving voting systems standards and drafting clear requirements that will ensure those standards are met. As you can imagine, using plain, clear language is one critical component of this task. However, we have run into one problem that we hope we can easily fix. Let’s call it The Case of Must vs Shall.

In the new Voluntary Voting System Guidelines (VVSG 2.0) structure, we can provide guidance or recommendations even if they aren’t requirements. To ensure clarity, we aim to use must, instead of what has been used in past versions of the VVSG – the confusing shall.

We asked plain language expert Joanne Locke to help us sort all this out. Here’s what she says.

When we need to communicate clearly, we can’t use the word shall anymore.  It’s just that simple. Shall has too many meanings, including will, may or must. Why use something with more than one meaning, when must is so clear?  It has only one meaning – mandatory.

Here are four situations and the words that best fit those situations, plainly and clearly.

• Requirements – must, must not
• Recommendations – recommend, don’t recommend (the old should, should not)
• Permission – may, need not
• Possibility and capability – can, cannot

Fortunately, the use of must is becoming more widespread for people in many walks of life including legal, business, and the government. They have found that must is much clearer. Here are a few examples.

Starting with the legal world – Joe Kimble, a leading expert in plain language and Professor Emeritus of Cooley Law School, cites more than 1,100 cases that were litigated “involving the ubiquitous shall.”  Legal reference books like the Federal Rules of Civil Procedure no longer use the word shall. Even the Supreme Court ruled that when the word shall appears in statutes, it means may.

Bryan Garner, editor in chief of Black’s Law Dictionary says, “In every English-speaking jurisdiction that I know of – don’t be so shocked – shall has been held to mean may.  As Justice Ruth Bader Ginsburg remarked in a majority opinion: “though shall has been held to mean must, legal writers sometimes use, or misuse, shall to mean should, will or even may.”

“With one exception, shall has now been purged from all four major sets of federal rules [for legal practice and procedure], including evidence.”

Bryan Garner, Shall We Abandon Shall? in the ABA Journal.

And our friends in the government are also working hard to make must the standard. After the Plain Writing Act was signed into law in 2010, federal agencies turned to the Federal Plain Language Guidelines. My colleague at the Federal Aviation Administration, Bruce Corsino, recently posted a blog on this topic. Here are the resources he shared:

• The Federal Register Document Drafting Handbook (Section 3) states “Use ‘must’ instead of ‘shall’ to impose a legal obligation on your reader.”
• The Federal Plain Language Guidelines (page 25)(PDF) referred to in the Federal Plain Writing Act of 2010, compel the FAA and every federal department to “use ‘must,’ not ‘shall’” to indicate requirements.
• FAA Plain Language Writing Order 1000.36, (page 4)(PDF) says avoid the word “shall” and use “must” to impose requirements, including contracts.

Amy Bunk, Director of Legal Affairs and Policy, at the Office of the Federal Register states, “We recommend must instead of shall. When we revised our regulations in 2014, we removed shall from 1 CFR part 51.”  In Drafting Legal Documents, Principles of Clear Writing Federal Register, we find “Use must instead of shall”

Must vs. Shall at the Federal Register

• must – imposes obligation, indicates a necessity to act
• must not – indicates a prohibition
• should – infers obligation, but not absolute necessity
• may – indicates discretion to act
• shall –  imposes an obligation to act, but may be confused with prediction of future action
• will –  predicts future action

For example

DON’T SAY: The Standards Board shall approve it.

SAY: The Standards Board must approve it. [obligation]

OR: The Standard Boards will approve it. [future action]

 

Language is constantly evolving. New words are added and old ones fall out of favor. And not everyone is on board yet with must.  We realize that ISO and other organizations may still be playing catch up. But that is simply another reason for us to lead the way and demonstrate that must works in situations where shall may not.