Legal Drafting-1: The Grammar Toolbox: How to Use ‘Would,’ ‘Should,’ and ‘Could’ Correctly

This section, 'Legal Drafting,' has been introduced in response to numerous requests from legal professionals. Based on the requests, section1.in/section-v1/ has constituted advocates with more than 10 years of practice in action, under the supervision of senior practitioners in this field; Combinedly they provides a structured framework (only for English Language) ensuring comprehensive learning and skill development in legal drafting. As per their advice we have started this 'legal drafting' subject by contemplating some English Grammar Exercises. In the subsequent lessons we will slowly get down to the drafting and finally Legal drafting.

Simple Way (for beginners)

1. The “What If” Duo (Would)

Use these when you are imagining something or talking about a result.

  • Would be: Used for imagining a present or future situation.
    • Example: “If I were a superhero, my name would be Super-Kid.”
  • Would have been: Used for imagining something in the past that didn’t actually happen.
    • Example: “If it hadn’t rained, the picnic would have been so much fun!”

2. The “Right Thing” Duo (Should & Ought To)

Use these for advice, rules, or things you expected to happen.

  • Should be: Used for what is right or expected right now.
    • Example: “You should be in bed by 8:00 PM.”
  • Should have been: Used when something didn’t happen in the past, but it was the right thing to do.
    • Example: “The cake should have been out of the oven ten minutes ago!”
  • Ought to: This is just a fancy way of saying “should.”
    • Example: “You ought to say ‘please’ when asking for a cookie.”

3. The “Maybe” Duo (Might & Could)

Use these when you aren’t 100% sure. They are for guesses!

  • Might be / Could be: Used for a guess about right now.
    • Example: “That sound might be a ghost… or it could be just the wind.”
  • Might have been / Could have been: Used for a guess about the past.
    • Example: “I can’t find my toy. It might have been left at the park.”

4. The “Promise” Duo (Shall)

“Shall” is very formal. It’s often used for promises or things that are definitely going to happen.

  • Shall be: A strong way of saying “will be.”
    • Example: “We shall be the champions of the soccer tournament!”
  • Shall have been: This describes something that will be finished by a certain time in the future.
    • Example: “By next week, I shall have been at this school for a whole year.”

5. The “Before That” Phrase (Had Been)

Use this when you are talking about two things in the past, and one happened even earlier than the other.

  • Had been: Used to show an action that started and finished in the past.
    • Example: “The ground was wet because it had been raining all night.”

A little Hard (for intermediate learners)

1. The “Hypothetical” Group (Would)

Use Would when talking about imaginary situations or conditions.

  • Would be
    • Usage: Imagining a situation in the present or future that isn’t real right now.
    • Example: “If I lived in Italy, I would be fluent in Italian by now.”
  • Would have been
    • Usage: Imagining a past situation that didn’t happen (often expressing regret or a missed result).
    • Example: “If we had left earlier, the traffic would have been much lighter.”

2. The “Expectation & Advice” Group (Should / Ought to)

Use these when talking about what is “right,” “best,” or “expected.”

  • Should be
    • Usage: Stating what is expected to be happening right now or in the near future.
    • Example: “The package should be here any minute.” (Expectation)
    • Example: “You should be more careful.” (Advice)
  • Should have been
    • Usage: Talking about something that was expected in the past but didn’t happen (often a critique).
    • Example: “The project should have been finished yesterday.” (It wasn’t finished).
  • Ought to
    • Usage: A slightly more formal or moral way of saying “should.” It implies a duty or logical expectation.
    • Example: “You ought to apologize for your mistake.”

3. The “Possibility” Group (Could / Might)

Use these when you are unsure or guessing. Could often suggests capability or theoretical possibility, while Might suggests probability (chance).

  • Could be / Might be
    • Usage: Guessing about the present.
    • Example (Could): “It could be true, but I doubt it.” (It’s possible in theory).
    • Example (Might): “He might be stuck in traffic.” (There is a chance).
  • Could have been / Might have been
    • Usage: Guessing about the past.
    • Example (Could): “It could have been a disaster if you hadn’t helped!” (It was capable of being a disaster).
    • Example (Might): “I can’t find my keys; they might have been left at the office.” (There is a chance they were left there).

4. The “Formal Future” Group (Shall)

Shall is formal and less common in daily US English, but very common in legal documents, formal British English, or determined statements.

  • Shall be
    • Usage: A strong promise, a rule, or a formal prediction.
    • Example: “The tenant shall be responsible for all repairs.” (Legal rule).
    • Example: “We shall be victorious!” (Determination).
  • Shall have been
    • Usage: The Future Perfect tense. It describes something that will be completed by a specific time in the future.
    • Example: “By the time you arrive, I shall have been working for ten hours straight.”

5. The “Timeline Anchor” (Had Been)

This is not a modal verb like the others; it is the Past Perfect Continuous tense.

  • Had been
    • Usage: Talking about an action that was happening before another action in the past. It sets the backstory.
    • Example: “The road was slippery because it had been raining all night.” (The raining happened before the road was slippery).

Cheat Sheets

    1. The “Imagination” Group (Would)

    Use this for things that are not real (dreams, wishes) or results of a condition.

    PhraseMeaningSimple ExampleStory Example
    Would beImagining something right now or in the future.“I would be scared of a lion.”“If I had a spaceship, I would be on Mars right now.”
    Would have beenImagining a past that didn’t happen (often a regret).“It would have been fun.”“If I hadn’t dropped my ice cream, it would have been delicious.”
    2. The “Rules & Advice” Group (Should / Ought to)

    Use this for what is right, expected, or best to do.

    PhraseMeaningSimple ExampleStory Example
    Should beExpecting something now or giving advice.“He should be at school.”“The sun is up, so it should be warm outside.”
    Should have beenSomething that was expected in the past but failed.“It should have been easy.”“The bus should have been here at 8:00, but it arrived at 8:30.”
    Ought toFancy way of saying “should.”“You ought to help.”“You ought to wear a helmet when riding your bike.”
    3. The “Maybe” Group (Could / Might)

    Use this when you are guessing or not 100% sure.

    PhraseMeaningSimple ExampleStory Example
    Could beIt is possible (right now).“It could be raining.”“Don’t open the box! It could be a spider inside.”
    Might beIt is probable/likely (right now).“She might be sleeping.”“Let’s call grandma; she might be home by now.”
    Could have beenIt was possible in the past (but maybe didn’t happen).“It could have been worse.”“That fall could have been dangerous if you weren’t wearing pads.”
    Might have beenA guess about what happened in the past.“It might have been the cat.”“I can’t find the remote. It might have been put in the wrong drawer.”
    4. The “Formal & Time” Group (Shall / Had)

    Use these for promises, formal speech, or telling history.

    PhraseMeaningSimple ExampleStory Example
    Shall beA strong promise or strict rule (Future).“I shall be King!”“The rules say that no student shall be in the hall without a pass.”
    Shall have beenSomething that will be finished by a future time.“I shall have been here all day.”“By 5:00 PM, we shall have been waiting for three whole hours.”
    Had beenAction that happened before another past action.“I had been running.”“I was out of breath because I had been running for the bus.”
    Quick Tip for Remembering:
    • “Have been” usually means you are looking backwards at the Past.
    • “Be” usually means you are looking at the Present or Future.

    Grammar Word Bank & Exercise (fill up the blanks with fun quiz)

    Here are some practice exercises to test your skills! I have included a “Word Bank” to help you choose the right phrase.

    • would be
    • should be
    • would have been
    • should have been
    • might be
    • might have been
    • shall be
    • shall have been
    • had been
    • ought to
    • could be
    • could have been

    Level 1: The Fun Quiz

    [Instructions: Read the sentence and pick the best phrase from the Word Bank to fill in the blank].

    • The Imaginary Game [If I were a giant, I __________ able to touch the clouds!]
    • The Missing Homework [I can’t find my homework folder. It __________ left on the kitchen table, but I’m not sure].
    • The Dirty Shoes [His shoes were muddy because he __________ jumping in puddles all afternoon].
    • The Late Bus [Look at the time! The school bus __________ here five minutes ago].
    • The Good Manners [You __________ say “please” when you ask for a glass of water].
    • The Mystery Sound [Do you hear that scratching noise? It __________ a mouse in the wall!]
    • The Missed Party [If I hadn’t gotten sick, I __________ at your birthday party yesterday\.
    • The Strong Promise [“I promise that I __________ the best student in the class this year!”]
    • The Big Mistake [Oh no! The cake is burnt. It __________ taken out of the oven sooner\.
    • The Long Wait [By the time the movie starts, we __________ waiting in line for two whole hours!]

    Answer Key
    1. would be (Imagining a situation: “If I were…”)
    2. might have been (Guessing about the past: “It might have been left…”)
    3. had been (The backstory: happened before his shoes got muddy)
    4. should have been (Past expectation: It was supposed to be there, but wasn’t)
    5. ought to (Advice: The right thing to do)
    6. could be OR might be (Guessing about the present noise)
    7. would have been (Imagining a past that didn’t happen)
    8. shall be (A strong promise/determination)
    9. should have been (A regret about the past)
    10. shall have been (Future completion: looking forward to a finished timeline)

    [End of Part 1 of Legal Drafting]

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