Legal Writing Tip: Choose the Active Voice

Savannah Blackwell

legal-writing-DecWhat is the difference between the passive and active voice in writing?

In active voice, the subject of the clause or sentence does the acting. In passive voice, the subject does not perform the action of the verb. Instead, the subject is acted upon, or as legal writing expert Bryan Garner says, in passive voice, the writer “back[s] into the sentence.”

Passive: The moon was jumped over by the cow.

Active: The cow jumped over the moon.

Using active verbs makes your writing livelier, as well as more concise, and more readable.
In the examples above, the sentence in the passive voice includes two additional words, was and by. Passive voice is wordier than active voice.

Moreover, use of passive verbs often creates ambiguity.

With active voice, the reader can tell who is doing what. With passive voice, the writer can obscure the identity of the actor. In his Plain English for Lawyers (5th Ed.), Richard Wydick calls this sort of construction the “truncated passive.” Here’s his example: The ball was kicked.

“Who kicked the ball?” he asks us. We have no know way of knowing. Not surprisingly, bureaucrats and politicians like to use this type of construction, because it hides the identity of who is responsibility for the action.

As Garner notes in The Winning Brief (3d Ed.), identifying the actor in passive voice usually requires adding a “by-phrase,” as in “The brief was filed,” versus, “The brief was filed by (Party X).”

A third problem with passive voice is that it ruins the normal subject-verb order of a sentence, thus making it more difficult for readers to follow along.

Avoid passive voice by eschewing use of a be-verb followed by a past particle (often a verb ending in ed), such as is dismissed, are docketed, and was vacated.

Occasionally, a writer has a good reason to use the passive voice. For example, passive voice is appropriate for emphasizing what was done, as opposed to who did it: The subpoena was served on January 19th (from Wydick).

You may use the passive when the actor is unknown: The data files were mysteriously destroyed (Wydick again). Or when you would rather not highlight what your client did, as in (Mr. Smith’s) teeth were knocked out (Wydick).

And you may opt for the passive “when a sense of detached abstraction is appropriate,” as in the example “In the eyes of the law, all persons are created equal” (Wydick).

Situations calling for passive construction are the exception, however. According to Garner, they account for no more than 15 to 20 percent of contexts in which the passive appears. Thus, the presumption is against the passive voice.

About the author:

Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She became a licensed California attorney in 2010 and specializes in legal research and writing. She can be reached at savannah.blackwell@gmail.com. Follow her on Twitter at @SavannahBinSF.