THE LEGAL WRITING
CORNER
Finding Your Voice ( Active Versus Passive , That Is )
By Jennifer Cook , Denitsa Mavrova Heinrich , and Jenny Samarzja
When asked to list the most important techniques in legal writing , almost all lawyers place the use of active voice in the top ten . And we all can likely recall a legal writing professor cautioning about the pitfalls of passive voice and demanding students fix all such occurrences . This overemphasis on active voice has resulted in the misconception that passive voice is a scarlet letter of sorts , identifying the less-skilled legal writers of our profession . Even the spell check features in word processing programs reinforce this negative perception , calling our attention to passive phrasing with an unsightly squiggly line . But why has passive voice gotten such a bad rap when no rule prohibits its use in legal writing or writing in general ? 1 The active versus passive voice debate may not be as clear-cut as you previously thought .
Yes , it ’ s true that law professors , lawyers , and judges prefer the active over the passive voice . And there are many solid reasons to favor its use . Using an activevoice construction usually increases the effectiveness of legal writing . But in a few circumstances , the passive voice may actually be the better choice .
Let ’ s start by looking at the difference between active and passive voice . In active-voice sentences , the actor is doing something ; in passive-voice sentences , something is being done to the actor . 2 One way to spot a passive-voice construction is to examine the placement of the actor ( the person performing the action ) in relation to the verb ( the action that is being performed ). 3 In an active-voice construction , the actor comes first ; the verb comes second .
The reader can first identify the actor and then progress to discover the action . In other words , the action in the sentence flows naturally from left to right , the same way we read the words . 4 On the other hand , in a passive-voice construction , the actor is either tacked onto the end of the sentence or is hidden altogether . The action depicted is thus presented out of order , unconventionally flowing right to left . 5
Consider the following sentence , for example : The boy threw the baseball . In the sentence , the actor ( the boy ) comes first , followed by the verb ( threw ). This is an example of an active-voice construction , with the action flowing left to right . Now , let ’ s change it : The baseball was thrown by the boy . Although this sentence conveys the exact same idea , the verb has been transformed from the action word , threw , to the less exciting combination of a to-be verb ( was ) and a past participle ( thrown ). 6 The actor ( the boy ) has been shuffled all the way to the end of the sentence , following the action . This construction results in the action flowing backwards , right to left , making it a passive-voice construction .
Let ’ s turn now to the advantages of using active voice in legal writing .
Advantages of Active Voice
First , active voice is more concise , clear , and vibrant . Because active voice results in an identified actor and fewer words , the construction yields a more straightforward product . With legal analysis already wrought with complexities , clear sentence structure minimizes a reader ’ s opportunity for distraction and confusion . Moreover , because time is often a lawyer ’ s most valued commodity , active voice allows the writer to get to the point faster by eliminating needless words . For instance , in brief writing , where court rules mandate maximum word count , active voice helps lawyers make every word count . 7 Plus , the reduction of “ to be ” verbs , common in passive voice , makes active-voice writing more vigorous and lively , 8 helping keep the reader more interested and invested in the writing .
Second , active voice is more precise . Writing with precision is essential , especially in legal writing , where accuracy is the key to making sound legal arguments . As the old saying goes , “ the devil is in the details .” For those writing laws , active voice generally produces clearer , more accurate rules . Passive voice , on the other hand , is more likely to create ambiguity and lead to interpretation issues . 9 Similarly , lawyers pleading their claims tend to favor active voice to allow for specific identification of the actors involved . Such an identification may be the difference between stating a valid claim and producing a defective pleading , subject to dismissal for lack of specificity . 10
Lastly , active voice portrays confidence and conviction . Because sentences written in active voice directly identify both the actors and the actions , active voice often appears more certain and transparent to the reader , making the writer seem more confident . In contrast , passive voice , with its fogginess , can actually flag a lawyer ’ s legal vulnerabilities , acting as a “ subconscious tell ” of uncertainty . 11 In fact , research shows that lawyers who prefer the active over the passive voice in appellate brief writing are more likely to prevail on appeal . 12
Jennifer Cook , Denitsa Mavrova Heinrich , and Jenny Samarzja are faculty members in the Lawyering Skills Program at the University of North Dakota School of Law .
30 THE GAVEL