I read a recent Illinois Supreme Court opinion (People v. Garstecki) that I believe validates eliminating the word “shall” in legal documents or statutes. The legal writing scholars suggest using “must” instead of “shall” for a mandatory word because “shall has become so corrupted by misuse that it has no firm meaning. It can mean ‘must,’ ‘should,’ ‘will,’ ‘may,’ or ‘is.’ (Joseph Kimble, Lifting the Fog of Legalese, 160 (2006))
If you draft documents that use the word “shall,” you may want to consider changing your approach. Richard C. Wydick in his excellent book Plain English for Lawyers (5th ed. 2005) recommends using these words of authority:
"Must” is required to.
“Must not” is required not to; is disallowed.
“May” has discretion to; is permitted to.
“May not” is not permitted to; is disallowed from.
“Is entitled to” has a right to.
“Should” ought to.
“Will” means one of the following:
(a) To express a future contingency.
(b) In an adhesion contract, to express the strong party’s obligations.
(c) In a delicate contract between equals, to express both parties’ obligations.
Practice News
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November 25, 2009 |
Practice News
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November 25, 2009 |
Practice News
Asked and Answered By John W. Olmstead, MBA, Ph.D, CMC Q. I am a member of a three attorney firm. I think we know where we are as a firm, where we want to be, but we just don't know how to get to the next level. Ideas? A. Rather that following the pack - attorneys need to find ways in which their firm's can "dare to be different." Many attorneys are providing the same service - solving the same sort of legal problems for their clients using similar tools strategies/approaches. To many clients - attorneys all look the same. What can you do to stand out? Marketing is about more than just promoting the firm to get clients. It is also about deciding on: 1. What services to offer, where, and to whom? Sometimes less is more - by focusing on fewer areas of practice. Just because a law firm focuses on say three areas of practice - doesn't mean that it does not handle matters in other areas. It just means you are building you brand around the three core areas. These are the areas you primarily promote, speak about and write about. Broader geography? 2. Pricing. Not just the amount to charge but how to charge. Clients are asking for budgetary certainty? Get creative. 3. Delivery and producing the service. Are you doing all that you can using technology, staffing, work processes, etc. to minimize the cost of producing your services? If you are - aggressively promote it.
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November 24, 2009 |
Practice News
In the latest Trial Briefs, Bob Park describes the recent case Keener v. City of Herrin, in which the Illinois Supreme Court overruled a fifth district ruling for the plaintiff because the court lacked jurisdiction. The high court held that the circuit court's "September 13, 2005, dismissal order was final and appealable, but plaintiff took no action within 30 days to either file a notice of appeal or a motion to reconsider," Park writes in summarizing the supreme court ruling. "Thereafter, the circuit court no longer had jurisdiction to act." The problem: the lower court hadn't sent a copy of the September 13 order to the plaintiff's lawyer. The lesson, according to Steven R. Merican, author of the Illinois Appellate Lawyer Blog: "[A]ttorneys have an obligation to monitor their cases. A court clerk’s failure to mail notice of a dismissal does not absolve an attorney from missing a deadline to ask for reconsideration or to appeal."
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November 24, 2009 |
Practice News
Fastcase helps you search smarter by allowing you to jump to the most relevant paragraph in a case with one click. When browsing a case, just press the M key. Alternatively, you can click on the Jump to the most relevant paragraph link at the top of the screen. You will automatically be directed to the paragraph of the case that is most relevant to your search terms. Use this feature to move through your search results more efficiently and focus on the cases that are important to you. Note: This feature is currently only enabled when using Internet Explorer. It is not enabled in other browsers such as Mozilla Firefox, Google Chrome or Apple Safari at this time. Questions? Call us at 1-866-773-2782 (7AM-7PM Central Mon-Fri) or e-mail support@fastcase.com.
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November 23, 2009 |
Practice News
In People v. Vasquez, the second district held that police questioning of the defendant in a hospital's intensive care unit did not require Miranda warnings. As Sean Brady wrote in the latest ISBA Traffic Laws and Courts newsletter, the appellate court "reversed the trial court and ruled that the proper advisement and waiver of the right to remain silent and the right to have counsel present during questioning was unnecessary in Vasquez because the defendant was not in custody at the time of the interview and the misdemeanor DUI charge did not create a sixth amendment right to counsel." Read Sean's article.
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November 23, 2009 |
People | Practice News
[caption id="attachment_5931" align="alignright" width="150" caption="Justice Thomas Kilbride"][/caption] Illinois Supreme Court Justice Thomas L. Kilbride has been named Judge of the Year by the Illinois Chapter of the American Board of Trial Advocates (ABOTA). Justice Kilbride was honored and received the award on Friday, Nov. 20, at the University Club in Chicago. "Justice Kilbride was chosen not only because of his career on the Illinois Supreme Court, but also because of his 20 years in private practice," said Illinois ABOTA president Geoffrey L. Gifford. "His good public works, all the good things he's done in pro bono and other community service make him an unusually well-qualified candidate for this award." ABOTA is a 50-year-old national organization of civil trial lawyers comprised of an equal number of well-respected, highly talented plaintiff and defense attorneys. Its primary focus is to preserve the right of a trial by jury in civil cases, and the independence of the judiciary. The Illinois Chapter has about 90 members. Justice Kilbride, who grew up in Kankakee, received his B.A. degree magna cum laude from Saint Mary's in 1978; and his law degree from Antioch School of Law in Washington D.C. in 1981. While in law school, Justice Kilbride completed judicial internships for the administrative assistant to the Chief Justice of the United States Supreme Court and for U.S. District Court Judge Joyce Hens Green.
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November 23, 2009 |
Practice News
Today the Supreme Court of Illinois amended Rule 1.15 and 3.9 of the Illinois Rules of Professional Conduct. Both changes are effective Jan. 1, 2010. Rule 1.15 is amended to change the definition of "safe harbor," which is a yield that if paid by the financial institution on IOLTA accounts is deemed as a comparable return in compliance with this Rule. It now provides that the yield may be calculated as 70% of the Federal Funds Target Rate on the first business day of the calendar month "or 1%, whichever is higher." (New text in quotation marks.) The second change deletes the recent incorporation of Rule 3.5 (ex parte prohibitions) into Rule 3.9, which regulates advocates in nonadjudicative proceedings. It clarifies that Rule 3.9 applies only when a lawyer represents a client in an official hearing or meeting of a governmental agency or legislative body to which the lawyer or the lawyer's client is presenting evidence or argument. It does not apply to representation of a client in otherwise permitted lobbying activities.
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November 20, 2009 |
Practice News
The latest ISBA Government Lawyers newsletter contains a well-written, helpful summary of various loan forgiveness programs available to public interest lawyers. And "public interest lawyer" is pretty broadly defined. It includes assistant AGs, PDs, state's attorneys -- not just legal-aid lawyers, in other words (though it does include them, of course). The article highlights the Public Interest Attorney Assistance Act, which takes effect January 1 and "allows for loan assistance of a maximum of $6,000 per year, up to a career maximum of $30,000 in qualified loan forgiveness," according to Colleen Morgan. But there are other programs, too. Read Colleen's article to find out whether you or someone you know qualifies for help.
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November 19, 2009 |
Practice News
A provision in the National Defense Authorization Act signed last month by President Obama is good for military families, as Mike Lied explains in the new ISBA Labor and Employment Law newsletter: "Under the NDAA, qualifying 'exigency leave' now allows an eligible employee to take leave for a qualifying exigency related to the deployment of a son/daughter or parent who is a member of a regular component of the armed forces. 'Called to active duty' is no longer limited to contingency operations, but now also applies to a situation in which a member of either the regular or reserve components is deployed to any foreign country." Jasmine Villaflor Hernandez provides more detail in her article in the same issue.
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November 19, 2009 |
Practice News
The Illinois Supreme Court disbarred 3 lawyers, suspended 11 and censured 1 this week in its latest disciplinary filing. Most of the suspensions take effect on Dec. 8. More information on each case is available on the Web site of the Attorney Registration and Disciplinary Commission.