Monthly Archives: October 2015

Halloween isn’t just for kids. It’s for law professors and students too!

WMU-Cooley faculty, staff and students didn’t need much persuasion to convince them to celebrate Halloween this year! After all, Halloween isn’t just for kids. It’s for law professors and students too!


I said, "We can see right through that I'm an invisible ghost defense!" - Tampa Bay campus Mock Trial Board & Moot Court Board Annual Spooktacular

In the Tampa Bay Mock Trial Board and Moot Court Board annual Spooktacular, the mock attorney dashed the defendant’s (far left) hopes, exclaiming,”We can see right through that ‘I’m an invisible ghost’ defense!” 

Sure, candy is expected, but let’s talk pizza. Thank you, Dominoes for providing lunch to all of our WMU-Cooley ghouls and goblins – And Darth Vader; Lansing campus Halloween costume winner!

Sure, candy is expected, but let’s talk pizza. Thank you, Domino’s for providing lunch to all of our WMU-Cooley ghouls and goblins – And Darth Vader; Lansing campus Halloween costume winner!

Thank you #Dominoes for the pizza!

Where's the candy? Good thing we're at the Grand Rapids campus Access to Justice Clinic.

Where’s the candy? Good thing we’re at the Grand Rapids campus Access to Justice Clinic.

You are in big trouble, Elvis, with Mary Poppins and Ruth Bader Ginsburg presiding over your jurisdiction.

You are in big trouble, Elvis, with Mary Poppins and Ruth Bader Ginsburg presiding over your case.

It's not International Talk Like a Pirate Day or Gasparilla, but let's say it together: Arrr!

It’s not International Talk Like a Pirate Day or Gasparilla, but let’s say it together: Arrr!

Halloween and Auburn Hills pumpkins go together like chocolate and peanut butter!

Halloween and Auburn Hills pumpkins go together like chocolate and peanut butter!

Shades of Halloween and Thanksgiving. Must be fall in Auburn Hills, Michigan!

Shades of Halloween and Thanksgiving. Must be fall in Auburn Hills, Michigan!

So this is how they do trick-or-treating in Tampa? Food trucks?

So this is how they do trick-or-treating in Tampa? Food trucks?

Will the real Harry Potter please step forward.

Participants showed a great variety in costume choices!

Candy anyone?

Candy anyone?

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Veterans Court: A blessing to troubled treatment court graduate

“I should have been in jail. I should have been dead.  I should have been insane,” explained Earl “Gunny” Christensen, a veterans treatment court graduate, about his life up until he found help at the court three years earlier. “I came to this court. I spoke my piece. They made me talk to two angels in the back of the room who showed me all the different services that were available to me to help. They got me into program after program that I didn’t know existed.”

Christensen shared his troubled past with a large group of guests and the media during a news conference on Oct. 19, 2015. The event announced a new Veterans Treatment Courts Manual for judges and featured a panel of speakers from WMU-Cooley Law School, Michigan Veterans Affairs Agency, and the State Court Administrative Office. The manual will be a valuable resource for Michigan trial court judges and staff interested in developing veterans treatment courts.

In a June 25, 2015 Michigan Veterans Affairs Agency story, Christensen admits that, “After serving his country for nearly 20 years, [he] spent the next few decades battling a new enemy – himself.” The story explained that, “Christensen, who served in the Marine Corps from 1965-68 and 1972-88, suffered from depression, alcoholism and Post-Traumatic Stress Injury for years because he ‘didn’t know help was right in front of [him] the whole time.'”

Veterans Treatment Court graduate Earl “Gunny” Christensen

Veterans Treatment Court graduate Earl “Gunny” Christensen

“I suffered with PTSI by myself for so long, because I didn’t know about the help that was available,” Christensen said. “The first time I went to see a therapist at the local VA hospital, he described my life. He put his finger on what I’d been experiencing for so long without even knowing it was PTSI. It’s a cycle. One problem leads to another leads to another, but it doesn’t have to be that way.”

During the conference, Christensen made it clear that his turning point was when he became involved in the veterans treatment court. “They made me feel they cared. They wanted to help me. They didn’t want to punish me.” Today, Christensen, as a graduate of the court, is doing everything he can do to make sure others don’t go through what he did.

“I hope that this will help others,” stated Christensen.  It is because of the treatment court that “I am standing up on this side talking instead of on that side talking that way,”

Veterans Treatment Courts in Michigan: A Manual for Judges is a compilation of best practices being used to address the special circumstances of veterans confronted with non-violent criminal charges and is designed to serve as a blueprint for the further development of problem-solving courts for veterans.

Justice David Viviano, Michigan Supreme Court

Justice David Viviano, Michigan Supreme Court

The Veterans Treatment Court manual, which was was compiled through interviews conducted by WMU-Cooley students and edited by MVAA and Brigadier General and WMU-Cooley Professor Michael C. H. McDaniel, will serve as a tool for district and circuit court judges who do not operate a veterans treatment court,but wish to develop one in their jurisdiction. It includes suggested best practices and advice from Michigan judges who currently operate a VTC and was compiled through interviews conducted by WMU-Cooley students and edited by Michigan Veterans Affairs Agency and Ret. Brigadier General and WMU-Cooley Professor Michael C. H. McDaniel.

Ret. Brigadier General and WMU-Cooley Professor Michael C. H. McDaniel (far left) fields questions from the media and guests at East Lansing, Michigan's 54B District Court during an Oct. 19 news conference. Seated from left, Kristina Leonardi, Michigan Veterans Affairs Agency director of strategy, Judge Richard Ball standing, and Gunny Christensen.

Ret. Brigadier General and WMU-Cooley Professor Michael C. H. McDaniel (far left) fields questions from the media and guests at East Lansing, Michigan’s 54-B District Court during an Oct. 19 news conference. Seated from left, Kristina Leonardi, Michigan Veterans Affairs Agency director of strategy, Judge Richard Ball standing, and Gunny Christensen.

54B District Court Chief Judge Andrea Andrews Larkin

54-B District Court Chief Judge Andrea Andrews Larkin

Veterans Manual news conference speakers included, along with Ret. Brigadier General and WMU-Cooley Professor Michael C. H. McDaniel, 54-B District Court Chief Judge Andrea Andrews Larkin, Michigan Supreme Court Justice David Viviano, Michigan Veterans Affairs Agency Director of Strategy Kristina Leonardi, 54-B District Court Judge Richard Ball, and Veterans Treatment Court graduate Earl “Gunny” Christensen. More information about the Veterans Treatment Court manual and VTCs is available at The “Veterans Treatment Courts in Michigan: A Manual for Judges”can be accessed at


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Law student represents truth seldom told about legal employment today

I joined the faculty at Western Michigan University Cooley Law School a little over 10 years ago. I enjoyed a rewarding legal practice at a law firm that I still remember fondly, but was intrigued at the opportunity to teach the law in a rigorous and innovative way, grounded in practical experience. WMU-Cooley had accessible admissions criteria, but promised a transformative experience to its graduates. – WMU-Cooley Professor Frank Aiello

Back when I was at the law firm and a member of its finance practice group, it was a weekly ritual to read Crain’s Detroit Business. My law school alma mater did not stress the importance of understanding the local business landscape and the transactions that were the foundation of the local economy, but I learned this tip from seasoned business lawyers quickly after arriving at the firm. The webpage for my Secured Transactions class has a direct link to Crain’s at the top of the page.  

Ryan Plecha

Ryan Plecha

Last week, I learned that Ryan Plecha, a student from my first year of teaching, was named one of Crain’s 40 under 40.  The article recognized his critical involvement in Detroit’s bankruptcy as counsel for retired city employees and its importance to the “grand bargain” that allowed the city to emerge from bankruptcy.  

Ryan exemplifies WMU-Cooley and makes me proud to be a member of its faculty.  He graduated from law school on the eve of an unprecedentedly challenging legal employment market. He made the most he could of every opportunity presented to him, volunteering his time to assist faculty members in research, interning at the federal court, networking with alumni, and starting his own solo practice. Through small, patient and intentional steps, he became a recognized leader in the region’s business community and the youngest partner ever named at Lippitt O’Keefe Gornbein    

Ryan, and other students like him, represent a truth that is seldom told about legal employment today. There is a critical need for bright, entrepreneurial, and hardworking individuals that have the practical skills necessary to represent their clients. Congratulations, Ryan. You inspire us.

More about Ryan Plecha:

  • Named one of metro Detroit’s “Top Young Lawyers” for 2015 by DBusiness Magazine
  • Received the President’s Award  from the Barristers Section of the Detroit Metropolitan Bar Association (DMBA), which annually honors a young attorney whose career has exhibited high standards of service to the profession, his clients, and the public
  • Recognized in 2014 as a “Super Lawyer Rising Star” and an “Up and Coming Lawyer” by Michigan Lawyers Weekly.
  • Plecha’s legal practice focuses on complex civil and commercial litigation. He played a key role in his firm’s successful representation of Detroit retirees in the city’s historic bankruptcy case. He also handles class action, shareholder disputes and other commercial matters.
  • Magna cum laude graduate of WMU-Cooley Law School, with a bachelor’s degree from Kalamazoo College in psychology.
  • Active member of the State Bar of Michigan Young Lawyers’ Executive Council, Federal Bar Association, American Bar Association, DMBA, Turnaround Management Association, and the American Bankruptcy Institute
WMU-Cooley Law School professor Frank Aiello

WMU-Cooley Law School professor Frank Aiello

WMU-Cooley Professor Frank Aiello teaches Property Law, Secured Transactions and Land Use Planning and Zoning Law. He is active in Cooley’s efforts to support student career development and placement, serving as Vice-Chairperson of the school’s faculty committee focused on these issues. To further the relationship between the school and Bar, he frequently participates in Bar-related functions and serves on the Board of Directors of the Detroit Metropolitan Bar Association.

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Attorney Steps on the Gas in his Mustang and the Legal Arena

Scott Beute thought he was driving down a straight road when he graduated in 1993 with a mechanical engineering degree and a lifelong love for cars.  Yet something inside him started steering him in another direction. “I kept finding excuses for not going back to school,” laughed Scott. “I knew that I wanted to further my education and my career, but didn’t know what that would be.  Going to law school had really never crossed my mind. But one day I was listening to a friend of mine’s wife, who was a paralegal, talking about how Cooley Law School had opened a campus in Grand Rapids. She was trying to convince her husband that he needed to go to law school.  Well, the funny thing was that my friend never ended up going to law school, but I did.”

WMU-Cooley Law School graduate Scott Beute is in-house counsel for JR Automation by day and race car driver on the weekends.

WMU-Cooley Law School graduate Scott Beute is in-house counsel for JR Automation by day and race car driver on the weekends.

“I decided to take the LSAT just to see how I would do,” remembered Scott, “and fortunately, after spending time going over some practice questions, I managed to qualify for a scholarship at Cooley. I was working full time, but because Cooley had options that would allow me to take classes that fit around my work schedule, I decided to give it a try. I started taking classes at the Grand Rapids campus in January of 2004.”

Scott found that he enjoyed law school, especially the real-life practice experience he gained. “That’s what stood out for me at Cooley. I was able to do my externship at Cooley’s Sixty Plus ElderLaw Clinic, which gave me practical experience with estate planning and things like guardianships, and I also was proud to be able to provide guidance and assistance to servicemen and women in Cooley’s Service to Soldiers program.”

Although it was a challenge to juggle law school, work, and family commitments, it was worth the trouble. Shortly after he started taking classes, Scott’s 11-year-old daughter, Ellyse, tried out for the Strikers, a travel soccer team in the Grand Haven area.  She made the team, but they lost their coach at the last minute, and Scott was asked if he could step in and help.  Coaching a travel team took up a lot of time on top of work and school, but he stuck with it for three years and had a great time doing it.

As Scott finished law school and was about to graduate, his biggest dilemma was trying to figure out exactly how he wanted to use his law degree, especially since he didn’t want to completely quit the idea of using his engineering background and experience.

He considered looking for a job at a law firm, but since he was not familiar with what that would be like and he didn’t know many attorneys, he needed to take some time to figure this out. He decided to volunteer on Friday mornings at the Self Help Office at the Grand Haven courthouse, which is run by Sheri Lankheet, another WMU-Cooley graduate. This gave him some practical experience with court procedures and issues in family law, landlord/tenant law, and various other types of cases. That exposure fueled his interest in the law, but he still felt that he would miss the engineering side of things if he left it behind.

But as luck would have it, sometimes you get to have your cake and eat it too! Scott Beute now works as in-house counsel for the Holland, Michigan-based industrial automation company, JR Automation Technologies, LLC. After starting out initially in Research & Development, he was able to use his legal training to bring some of the company’s legal work inside, and as a result, they’ve been able to save money and reduce the time it takes to negotiate agreements with their customers. Because the company has been growing, he recently was able to hire a second attorney, also a WMU-Cooley graduate, Sarah Jaromin. Sarah has been taking over some of Scott’s legal work, along with more of what they were spending on outside firms, so Scott can balance his time more between legal and R&D work.

Grand Rapids Campus Associate Dean Nelson Miller not only remembers Scott, he also keeps in touch personally and professionally. “I think it’s important that an employer, like JR Automation, permits their employees to do pro bono work alongside their work responsibilities,” said Miller. “At least three times over the last few years, I have asked Scott to help out an indigent client, and every time Scott has stepped right up and done great work, for free. In fact most of the legal work that Scott does outside of his employment is for free or at a reduced-rate, just to help out.”

As Scott put it, “The opportunity to go to law school has allowed me to assist people who may be in a tough spot and can use some help, and at the same time, I get to learn more about different areas of the law. It can be an interesting way to expand your knowledge base, but more importantly, it’s a way to give back. People don’t always have the highest opinions of lawyers, so I see this as a way to try to fix that. And I found that as a new attorney, there was no better way to get experience than by volunteering.”


Never one to sit still, Scott’s love for cars always has him wrenching on something. His latest interest is dirt-track racing. “I had a 1989 Mustang sitting in my barn for 12 years that I was building for road-course racing, but I never quite got it finished. At one point I thought, ‘If I’m never going to use this car, then I should probably just get rid of it.’ But in order to get rid of it, I had to put it back together and finish it first. Of course, once I did that, I realized that it was a lot of fun to drive, and I started looking for opportunities to use it. A friend of mine had tried SCCA Rallycross racing, and after hearing about it, I decided to give it a try. I ran the Mustang in a two-day national dirt track race at I96 Speedway in July, and I had a blast!”

Scott with daughter, Ellyse.

Scott with daughter, Ellyse.

Who knows what’s next for Scott, but the Rallycross racing could be a stepping stone to off-road stage rally racing like the WRC. Which leads to the next thing Scott wants to do. “I’ve been trying to convince my daughter to race!” Now a forensic psychology major as well as a snow board instructor, his daughter Ellyse goes to school in Marquette at Northern Michigan University, and has to deal with a lot of Upper Peninsula snow. In order to avoid the possibility of having to drive eight hours north to pull her out of a snowbank in the winter, Scott has been “recycling” old Audi’s so she has a car that can handle the weather. “They’re great cars, but they can also be a challenge to work on.  However, as long as you can swap an engine or a transmission by yourself, you can find some pretty good deals.” And with the all-wheel-drive, the Audi’s would be great for dirt track racing as well as Marquette winters, so with any luck, he may be able to get Ellyse out on the track too!




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Don’t Fall Through The Ice

Years ago for Christmas, I got a pair of ice skates. There was a park, with a pond used as a public ice rink, about five miles from our house. I asked for permission to take my new skates to go to that park. My mom admonished me not to go down to the St. Mary’s river and try to skate on it. She knew it meandered and passed right by that pond. In fact, it fed into it. She knew my propensity to spend time along the shores of that river and, even though it had been bitterly cold, she warned that the ice could not be trusted.


Of course, I knew better. I called my friend, Mike, and we met under the bridge near my house ON THE RIVER. Under the bridge, the snow had been scoured clear. We jumped up and down near shore and did not hear any fracturing. We looked through the ice and it was deep and clear. We could see that mom was dead wrong; that ice was safe!

So, we walked on the ice toward the park. Our confidence grew and we moved progressively toward the center of the river. We continued down the river and enjoyed the view toward the shoreline and eventually came abeam a General Electric Factory on the north shore of the river. As we approached it, we suddenly heard the ice crack! And crack again, and again, until I fell through the ice into the current and cold water below. I threw my skates toward the south shore and spread my arms out stopping my downward progress so that my head and shoulders remained above the ice.

Mike went to the south shore and stayed atop the ice. He immediately pulled a branch from the shoreline and laid flat as he approached me. I continued to break weaker ice until the ice would support me. I grabbed the branch that Mike held in my direction. Eventually, I was able to climb back onto the surface and move to the south shore.

The reason the ice failed was that there was an outlet pipe coming out of the factory and discharging water that was warmer than the existing river current. We figured that out too late! But, also, there was an employee who was standing outside a door facing the river watching as events unfolded. My greatest fear was not going under the ice and meeting my maker – rather, it was the thought that my mom might find out that I was on that river when she told me not to do so! I had visions of the police appearing with a rescue squad and alerting my mom – oh, the thought of being scolded by my mom was too much to bear.

It was about 10 degrees that morning. Mike and I made a very quick exit from the purview of that employee and ran down the shore towards my home. We came up beside the Brooklyn Bridge in Fort Wayne where there happened to be a laundromat. It was at that point we came up with the brilliant idea of putting money in a dryer that was vented directly to a parking lot on the other side of the wall. I took off as many clothes as I could and put them in the dryer. Then, I proceeded to the parking lot and sat on a guard rail beneath the dryer vent to allow it to warm me and dry the clothes which I continued to wear.

After some time, my clothes were dry, and so was I. Mike and I then proceeded OVER LAND to Sweeney Park where we skated till late that evening. My mom was never the wiser.

Many years later, not long before my mother passed away, I had a pang of conscience and decided to confess to the error of my ways. From her reaction and scolding, you would have thought that I had died. Never, I repeat, never tell your moms about your misdeeds – EVER!!!!!

Many students look for a Mike to rescue them as they start a practice. They have a “study buddy” in law school who they worked with to develop outlines and discuss cases. They tell me that they want to be partners as they start their firm. The truth is that you are better served by sharing office space and expenses and wait to see if you are compatible in terms of work ethics, money management and practice principles. Law practice divorces can be very messy.

When you are drafting materials for a hearing late Friday afternoon as your partner has left to join a foursome at the golf course, you may have second thoughts about your decision to partner. And, what is lost if you join together after a year of practice? You still have each other to support one another and act as sounding boards for your decisions. Every day will present you with a “crisis of confidence” and it is good to have someone to consult with, but you don’t need a formal partnership to do that. Your law school buddy can be “of counsel” for purposes of that consultation. Stay solo, and you won’t need to be rescued from the “ice” that melts below your feet as your business structure disintegrates before your eyes.

bauer_gary4Professor Gary Bauer has been a member of the full-time faculty at WMU-Cooley Law School since 1998. He now teaches Estate Planning to third-year law students and a directed study class he created called Solo By Design. His blog,, provides law students, recent solo practioners, and seasoned professionals who wish to go solo, with information and resources to be successful in the legal business. This blog post was first published on October 15, 2015.

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Award-winning senior shows how to rise above life’s challenges

If you looked up “resilient” in the dictionary, it would be fitting to find an image of Heather Spielmaker. The WMU-Cooley Law School graduating senior is the poster child for rising above life’s challenges with grace, strength, and even more options than she began with.

Heather Spielmaker

Heather Spielmaker

A mom at 19, Spielmaker had to trade in a fledgling college career to support herself and her son. When a subsequent marriage ended in divorce, she again found herself struggling to make ends meet for herself, her son, and her daughter.

Spielmaker, 43, didn’t give up. Instead, she not only survived the curves life threw at her, she thrived, and has taken it up another notch, making it her life’s mission to give to others she knows are facing the same challenges she’s gone through.

She’s gone on to graduate with high honors from Lansing Community College, and with honors from Michigan State University. And she’s about to earn her J.D. degree — with honors — from WMU-Cooley Law School.

For nearly nine years, Spielmaker was also the director of the school’s Center for Ethics, Service and Professionalism. In this role, she earned the Ingham County Bar Association’s highest honor for non-lawyers — the Liberty Bell Award — for her work in helping members of the military receive legal assistance through the school’s Service to Soldiers program.

Recently, Spielmaker earned another prestigious accolade when the National Association of Women Lawyers presented her with the Outstanding Law Student Award. The honor is given to a graduating law student who has demonstrated academic achievement; shown motivation, tenacity, and enthusiasm; and contributed to the advancement of women in society and the legal profession.

Giving back to the community is an integral part of Spielmaker’s makeup. She served on the Charlotte, Michigan, City Council, was a volunteer coordinator for Ingham Regional Medical Center, and became a charter member of the Capital Region Community Foundation Legacy Society. With that, she established the Heather Spielmaker Testamentary Fund with the foundation to support assistance for single parents and homeowners and programs that help emancipated minors.


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Volkswagen’s Legal Issues Discussed by WMU-Cooley Experts

WMU-Cooley Law School Professors Mark Dotson and Paul Carrier are paying close attention to potential legal ramifications facing Volkswagen for rigging millions of cars with deceptive software that falsifies emission testing results. Professor Dotson teaches Torts and Remedies and has extensive knowledge of consumer protection laws. Professor Carrier teaches a variety of international law courses, which include European Union Law, International Business Law, and Public International Law.

Mark Dotson

Mark Dotson

Regarding fines that the German automaker faces in the United States, Dotson said, “Volkswagen is exposed to $18 billion in penalties to the U.S. government for indisputable pervasive fraud. This is not a circumstance where an engineer went rogue, but instead goes all the way to the top of the corporate ladder. The fine will be on the high end, especially since this a foreign corporation dumping pollutants on the mother land. This will be a political nightmare when comes down to the amount of the eventual penalties.”

Dotson does not believe there will be any personal injury litigation, but notes that Volkswagen will realize significant costs fixing the issue. “Unless attorneys can identify specific health risks from the emissions over the past several years and associate them with Volkswagen’s vehicles, there would be no personal injury civil liabilities,” said Dotson. “Theoretically the consumers will have to get their cars fixed, or turn the cars in. There are going to be significant costs to the company, either through a buy back, or retrofit.”

Volkswagen will face a multitude of law suits and at the same time will have to deal with consumer confidence issues, notes Dotson. “Depending on Volkswagen’s fix, assuming the company can remove the emission problem with a modification, then exposure and liability will turn to how satisfied the customers are with the vehicle. This will be a test of consumer confidence with the company and its products,” said Dotson. “No doubt there will be class action lawsuits brought on by consumers emphasizing the fraud. Damages could range from costs associated with additional emissions testing, decreased value of the vehicle due to the perception that the cars are environmentally unfit, to punitive damages because of the fraud. If there is one area of law, even though the loss here is economic in nature, where courts are most willing to impose penalties, whether by a jury’s determination or pursuant to a statutory consumer protection scheme, it is when it comes to fraud.”

Paul Carrier

Paul Carrier

Carrier notes that Volkswagen’s potential litigation in the German courts will not protect the automaker from sanctions in the United States. He also points out that criminal charges could be handed down in Germany and will be harder to prosecute in the United States. “The German automaker is clearly within the jurisdictional purview of the U.S. Courts and subject to the administrative penalties of the E.P.A. This is not to say that there may not be some state-to-state negotiations and coordination,” said Carrier. “Criminal penalties, if such would apply, would be more diplomatically problematic. There are issues of comity that would move criminality into the diplomatic sphere, such that U.S. Courts could defer to German prosecution pursuant to one or more legal doctrines.”

Carrier also notes there could be issues regarding monetary judgments.  “If there is to be any monetary judgments, there could also be issues of enforceability. Unless the U.S. courts have jurisdiction over Volkswagen’s assets or the person, the legal mechanisms of Germany would need to be approached for enforcement,” said Carrier. “There is a recognized respect for international arbitration awards (in large part as a response to difficulties with the enforcement of court judgments). But this does not appear to be an arbitral issue.”

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Prof. Joe Kimble Is Right: In Legal Drafting Use the Word “Shall” at Your Peril

Robb PhotoJames D. Robb is Associate Dean of External Affairs and General Counsel at WMU-Cooley Law School.  


How often do you find the word “shall” in a contract or legislation you are reviewing? Have you wondered what precisely that word means? Or what the parties or legislature actually intended? Is “shall” a promise? Is it a command? Is it a declaration of determination? Is it a permissive term? Is its use clear to you?

Does it mean “must” as in a contractual promise?

 Seller shall maintain the property in good condition until closing.

Does it mean “will” as in a statement of future intent?

  I shall stop at the store on the way home from work.

Is it a statement of determination?

  I shall return!

Does it mean “may”?

  No pedestrian shall enter the intersection against the red traffic light.

Is it an invitation?

  Shall we go?

Obviously, the word “shall” has many meanings depending on the context. And often that context is clear. But consider what happens if the word shows up in a contract and is construed by a reviewing court to be ambiguous.

In fact, sloppy use of the word “shall” in a contract can be disastrous because a court that finds it ambiguous will construe it against the drafter. Our own Distinguished Professor Emeritus Joe Kimble, a leader of the plain language movement and one of the deans of America’s legal writing instructors, has pointed out how drafters use “shall” mindlessly. He has warned us that courts “read it any which way.” A recent important case bears him out, and even quotes him on the point.

In Orthopedic Specialists v. Allstate Insurance Company,  No. 4D14-287  (Fla. Dist. Ct. App.) (August 19, 2015), the Florida Court of Appeals held the word “shall” to be inherently unclear and ambiguous, particularly when used in the phrase “shall be subject to.” The court then construed the word against the insurer that wrote a policy for personal injury protection. Professor Kimble’s warning is quoted with approval in footnote 3 of the concurring opinion.

My abridged version of the Oxford Universal English Dictionary, published in 1937, devotes 23 column inches─more than two thirds of an entire page of blindingly tiny print─to the definition of “shall.”  That alone might suggest the word can be troublesome for those who need to draft with precision.

On a larger scale, Professor Kimble’s great book, Writing for Dollars, Writing to Please, demonstrates the undue cost and expense associated with forbidding, verbose, and unclear writing. I recommend it to you. In performing your own legal work, take his advice:  be precise. Write clearly and to the point. And when tempted to use “shall,” think again. Perhaps the words “must,” “will,” or “may” will more clearly, and more safely, express your intent.

Writing for Dollars, Writing to Please by Joseph KimbleProfessor Joseph Kimble

We welcome your comments by replying below.


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