Understanding the Place of Passive Voice in Law
At its most basic, passive voice is created when the action of the verb is not placed upon the subject. In legal writing, that means the action of a verb is not placed on the actor but instead the act is placed onto another.
Most of you likely remember more of your high school English than you consciously think about. The following is an example of passive voice:
The ball was thrown to the attorney by her client.
From the example, it is clear that "by her client," is not necessary to the sentence. If the client were removed and we still understood that the ball was thrown, the sentence is not passive, even without the "by her client," reference. Here is the same sentence with passive construction:
The ball was thrown.
It is still clear who threw the ball and unnecessary to explain. Without the explanation, the action is still placed upon the subject, and is therefore active rather than passive. It’s important to note that "to her" or "on her" are both technically passive phrases because they are directed to a particular person . However, there is no need to include those phrases because they do not add to the meaning, and can result in long and unnecessarily complex sentences.
"By her client" is unnecessary to this sentence, converting it to passive voice. The prior examples demonstrate how passive voice can be cumbersome and unnecessary to the understanding of the sentence. Example:
The statute was enacted by the legislature in 2012.
Again, I am sure you could easily interpret the meaning of this without "by the legislature." Without this phrase, you do not lose meaning.
The purpose of my explanations is not to explain the English language, but to explain why certain phrases have become necessary in legal writing. Certainly there are situations where context might require the use of a phrase that otherwise would serve no purpose, but there are many more times where extra phrases are added unnecessarily. This can be damaging to the overall quality of the document, and leave the reader frustrated and annoyed.
Active Voice versus Passive Voice and their Effects on Legal Writing Clarity
Active and passive voice are two different grammatical structures that illuminate the subject of the sentence in fundamentally different ways. Active voice sentences ([active] = [subject] + [verb] + [object] — subject does something to object) put the subject first. In my example, the verb is "eats" and it is easy to see what the subject is doing.
Passive voice ([passive] = [object] + [verb] + [subject] — object receives an action from the subject) puts the object first and moves the verb to the middle of the sentence. Because the verb is between the subject and the object in active voice, it is easy to see that "the ball" is the object receiving the action from "the tiger." In the passive voice, the action is much harder to perceive and is less obvious: "the ball" still is the object receiving the action, but it is less apparent because it’s buried at the end of the sentence.
For this reason, excessive use of passive voice structures can make your writing less clear, more complex, and harder to read and understand. Excessive passive voice also can make your writing less enjoyable. Headlines like "Is Videotape Food" (A Washington Post headline that refers to a dispute over whether video stores are food chains under a local law) might be amusing when observed, but will be less enjoyable when required reading (perhaps to a judge) as part of a pleading.
People are inclined to elevate the importance of the first word in a title or heading. I don’t know why, but it could be that we are influenced by the practice of placing the subject of a question or command first. "Come here, you!" sounds a lot better than "You, come here!" In this spirit, if passive and active constructions are used interchangeably but irregularly in the same paragraph (let alone the same sentence), readers are inclined to treat the first one as more important. More specifically, readers are inclined to treat the first one as the "main" sentence, and follow the logic of the second one as a digression or clarification. This is fine, unless you intend for the second construction to be the main idea. At least, that is the way I see it as an old man lawyer.
Many lawyers and scholars I know do not agree with me. I have read and taught that some legal writing experts encourage the use of the passive voice as a powerful rhetorical tool. One such expert is Bryan A. Garner, the editor of Black’s Law Dictionary and the author of many books on legal writing style. In the sample below, I have highlighted examples of the use of passive voice in the preferred version and the disfavored version.
In the cases discussed in section 2(a) of this chapter, I see problems with including the words "a ball" inside double quotes [in the first example below]. That is, I understand and appreciate the intent of putting "a ball" in quotes to signal that the quoted words represent an element of a claim or defense. But this usage is unwarranted when the court only presumed that statute 57.1 violated chapter 243." [In the second example below, "presumed that statute 57.1 violated chapter 243" is quoted.]
In my three-volume style guide, Legal Writing in Plain English, I mention this issue very briefly in chapter 4. In my one-volume plain-english style guide, Legal Writing: A Judge’s Perspective, I mentioned this issue very briefly in section 3.6. I also wrote a law review article that briefly covers this issue: George W. Throckmorton, Simplifying Administrative Law Questions, 27 Hous. L. Rev. 1 (1990).
Knowing When to Use Passive Voice in Legal Writing
Lawyers typically should avoid using passive voice in almost all legal writing. However, there are some circumstances when you should use passive voice. To know whether a passive voice construction is right for you, you need to have a basic sense of when you should avoid passive voice and when you can or should use it.
Use passive voice:
To be deliberately opaque. This is more difficult to pull off (and to pull back) than you might think. But when you want to avoid readers connecting the dots, using passive voice to avoid overtly mentioning your opponent can keep a critical reader from connecting the dots yourself. It can help maintain plausible deniability, while not really hiding anything. If you make the passive voice construction clear enough, it will not generally be taken as persuasive, but it also won’t require any overt defense. Example: "All necessary clearances for the transaction will be obtained by the seller." See how vague that sentence is? Who will obtain the clearances? Will it be the seller? The answer is in the context. By eliminating the subject, the sentence leaves the reader to assume that the answer is the seller, but also giving deniability.
To highlight the action. Using passive voice makes it possible to put the action front and center without focusing on the actor. Sometimes, an action needs no actor, and highlighting the action is more important than mentioning the actor. Example: "The danger was underestimated." This sentence tells the reader that someone was in error without mentioning who. If you were writing a pleading about what someone else said ("The lawyer underestimated the danger"), the focus of your sentence would shift to the lawyer. In addition, it combines the action with the status, allowing you to say: "The danger was underestimated by the seller."
To prevent emotional language. When capturing a person’s actions, the person at fault is often at the forefront of the sentence. When you want to remove the blame from the sentence, switching to passive voice can help downplay the action. Compare these two: "The lawyer failed the client." vs. "The client was failed by the lawyer." The first sentence places the blame squarely on the lawyer. The second sentence does not.
Common Errors Associated with the Use of Passive Voice
One of the unintended consequences of using passive voice is the potential for misunderstanding: Some readers might perceive that information is missing. Passive voice can be too vague: The actions of "they" or "the IC," for example, are not clearly described. In those cases, the preferred narrative might read something like this: The IC recommended against supporting (X) due to (Y), (Z) and/or (A). That modified version adds detail about the reasons for the recommendation, as well as who made the recommendation.
The Style Manual instructs writers to avoid using the passive voice, except in a few very specific situations. One example of an exception is when the receiver of the action is more important than the doer. For instance, in some cases, the omission of the doer might be appropriate because we don’t know who the doer is, and it might be better to simply move on with the narrative. However, the note in the Style Manual suggests that the passive voice is to be used rarely. So much depends on the context.
Another pitfall of the passive voice to watch out for is loss of precision. Here is an example: There has been a majority on the IC that considers (a) to be a supporting material , and therefore, the (X) should not be included in the AO. Without specifying what the "(a)" was, it is unclear what the majority opinion was based on. This could be remedied by modifying the lead-in to include specifics, such as "Common Article 3 of the Geneva Conventions, the Law of Armed Conflict Deskbook, and DODI 5200.39," or all three combined. With that additional detail, the reader knows what the "(a)" is, and it could be modified in many ways to fit the context.
There are also times with reports and articles that using the passive voice can result in a less punchy lead. In other words, the passive voice might rob the narrative of its ability to grab the reader’s attention with a strong first sentence or two, such as "(X) was assessed as meeting (A), (B) and (C) for (D) and (E) by (F), (G), and (H). These internal assessments should have a broader explanatory lead-in to spell out the (A), (B) and (C), and (D) and (E) for the (X), which would position the report in a way that immediately gives the reader an idea of what they can expect in the section that follows.
Passive Voice: Tips and Techniques for Identifying and Correcting
There are a number of ways to spot passive voice in your writing. An early step in the writing process, before you dig into drafting, can save a lot of time in editing. From the outset, when you’re forming your sentences, ensure that based on your verb choice, you are fully expressing who is performing the action. Do not let the passive verb come first, or get comfortable with letting the preposition "by" be in there; "by" is the ultimate indicator that you’ve got a passively constructed sentence.
In addition to spotting passive verbs that you can revise at the forefront of your writing process, there are also some key revision strategies you can look to in order to eliminate passive constructions from your sentences. Even if you get through with your rough drafts and need to address the issue at the revision stage, these techniques will serve you well. I have my clients search for the following three tell-tale indicators of passive voice as a final check of standing active writing:
So how do you take a passively constructed sentence and take it to the active voice? I recommend sticking to a number of basic patterns.
Let’s look at a few examples. The passive: "Outsourcing may be prohibited by the board." We’d revise that to become: "The board may prohibit outsourcing."
Passive: "This procedure is designed to ensure compliance with the regulation."
Revision: "This procedure ensures compliance with the regulation."
And the most common: "A hospital may deny admission."
Revision: "A hospital may deny admission."
The passive is such a common issue in writing, but fortunately it can be easily avoided with a few straightforward, efficient strategies. Always keep players and actions together and remember that actors do . . . Actors perform actions.
Active and Passive Voice Balance for Legal Greatness
While passive voice has its merits in legal writing, the best lawyers and law firms are able to strike a balance between active and passive voice. As the Wilmot Hall site points out, "One of the characteristics of professional style that separates successful professional communicators from unsuccessful amateur communicators is how low a percentage of passive voice they use. Two percent of the words you write should be passive."
Various research studies suggest that while use of passive voice in legal writing is a perennial concern, studies have not investigated the effects of voice on judgments about attorneys’ competency (Fitzhugh et al. 2015). In today’s digital legal marketplace, reputation plays a critical role in choosing a lawyer or law firm.
Lawyers need different modes of communication for different purposes. In a courtroom, passive voice may help the lawyer be dispassionate and objective about jury instructions, motions for judgment of acquittal, and objections.
Where passive voice may be suitable for discussing third parties in case law in legal writing for law review articles, your legal blogs, articles, Marketing & PR, or web content, active voice may be more persuasive and compelling for the human reader of your legal content .
"It’s an ongoing debate whether professionals should be using passive or active voice. Many people prefer active voice because it makes for easier reading," according to Gage Educational Publishing.
In his book, The Elements of Style, Second Edition (1999), William Strunk, Jr. championed shorter and more comprehensible sentences and prose for active voice that made for reader ease.
Here are a few examples from his book:
• Short sentences are forty words or less on average, and even longer sentences on rare occasions can be acceptable.
• Use a sentence containing one idea for clarity.
• Using the active voice is usually best as it is less complicated and more natural.
• If you need a sentence to end with a preposition, it is often better to use active voice instead of trying to find a way to manipulate active voice.
• Prepositions can be used in legal writing to avoid a verb in order to make an adjective function more effectively than an adverb.
Legal content marketing efforts need to appeal to the human readership just as well as the search engine rankings. Finding the sweet spot using both active and passive voice is essential to maximize your communication efforts.
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