The Shadow Cursor:
Beating Justice Holmes

by The Shadow

In 1918 Justice Holmes famously observed that “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425.

With apologies to the great jurist, such thinking has played no small part in the lack of clarity – or worse, sloppiness – that afflicts today’s legal writing.

Too much confusion – and indeed, litigation – has been sown by words that have been allowed to take on lives of their own. Bryan A. Garner, a law professor and the preeminent authority on modern American usage and legal writing, devotes considerable energy to promoting the use of Plain Language – “the idiomatic and grammatical use of language that most effectively presents ideas to the reader.” Garner, The Elements of Legal Style 7 (1991). To this end, Garner proscribes the unnecessary use of those words with more than one meaning – so-called “chameleon-hued words.” Garner, A Dictionary of Modern English Usage at 145.

“Shall,” for instance, is a commonly used chameleon-hued word. It varies in color and content according to circumstances, and is therefore commonly used by lawyers in violation of Garner’s Golden Rule of legal drafting – never use recurring words inconsistently in a single document. An excellent illustration of the misuse of “shall” is found in a letter written to the New York Times in 1898. The writer is responding to the grammatical observations of a “Mr. Wendell”:

“If Mr. Wendell heard a boy saying, ‘I will drown and nobody shall help me’ it would doubtless be the part of humanity to go to the rescue; but if those heart-rending words came from [Mr. Wendell] he might well pass by with a dry skin and some such comment as ‘Here, indeed, is a determined suicide.’”

In other words, is the drowning boy observing that no one apparently is coming to his aid? (The more accurate term in this case would be “will.”) Or is he insisting that no one come to his rescue? (The more accurate term in this case would be “should,” or “may.”)

Any attorney reading these words is likely within arm’s reach of a contract infected with inappropriately placed “shalls.” As shown above, the legal draftsman must be aware that “shall” can be used to skin different thoughts: a party’s obligation to do something, a party’s ability to do something, and the fact that a party actually will do something (whether or not the party is obligated, authorized, or encouraged to do so). Accordingly, always consider whether a more crystallized word such as “must,” “may,” or “will” would be more appropriate.

The tools needed to effectively use Plain Language –– a good dictionary and legal usage book –– are most likely already at your disposal. (Garner’s “Modern American Usage” is indispensable from any attorney’s bookshelf.) The elimination of chameleon-hued words will improve your writing’s clarity, eliminate confusion, and, perhaps most importantly, re-crystallize the meaning of words that vary too greatly in color and content.

Justice Holmes probably would not object to being proven wrong in this instance.