So , given all the advantages of active voice , why would a lawyer ever choose to intentionally write in passive voice ? In the legal context , there are some specific situations where passive-voice construction can benefit a writer . Let ’ s examine them .
Instances where Passive Voice may be Preferrable
First , when the identity of the actor is irrelevant , passive voice is a valid choice . 13 It is for this reason that a lawyer might choose the passive – Defendant was convicted of murder – construction over the activelyphrased – The court convicted the defendant of murder . Identifying the actor is irrelevant to what the writer intends to communicate – the defendant was convicted of murder . This passive-voice construction also allows the writer to place the emphasis on the recipient , rather than the doer , of the action . 14 And , as a bonus , the passive version uses five words , as opposed to the seven used in the active version . 15 Similarly , passive voice is preferrable when the actor is unknown , as in : The paperwork was stolen . No need to pronounce : An unknown person stole the paperwork .
Second , sometimes a lawyer may intentionally wish to obscure the identity of the actor . This goal can be artfully accomplished by using passive voice . Think the famous politician ’ s statement – Mistakes were made – rather than the admission – I made a mistake . 16 Or in the legal context – The victim was stabbed – rather than – My client stabbed the victim .
Lastly , passive voice can be useful in contract drafting when the focus is on a specific outcome , as opposed to the actor producing the outcome . For example , in an equipment lease provision requiring indemnification for damaged equipment , the focus is on the lessor wanting to be compensated for the damage , not on who caused the damage . Therefore , the passive-voice contract provision - Lessee will compensate Lessor if equipment is damaged – can be an effective choice for protecting the lessor ’ s full interest . 17 No specific actor need be actively identified in the provision .
In conclusion , being intentional about using active or passive voice is one way to set yourself apart as a skilled legal writer . The
use of appropriate voice in legal writing is thus just another tool in your toolbox to help you become a more effective advocate . And if you haven ’ t done so already , it ’ s time for you to find your voice ( active vs . passive , that is ).
1 . See BRYAN A . GARNER , THE REDBOOK 221-22 ( 2018 ); see also LENNE EIDSON ESPENSCHIED , THE GRAMMAR AND WRITING HANDBOOK FOR LAWYERS 52-53 ( 2011 ). 2 . Id .; see also BRYAN A . GARNER , LEGAL WRITING IN PLAIN ENGLISH 36-37 ( 2001 ). 3 . See generally GARNER , supra note 2 , at 221-22 . 4 . C . Edward Good , Abolish the Passive Voice ?, 8 No . 6 LANDSLIDE July-Aug . 2016 , at 43 , 45 . 5 . Id . 6 . See Bryan A . Garner , Eliminate Zombie Nouns and Minimize Passive Voice , 98 MICH . B . J ., Dec . 2019 , at 34 , 35 . 7 . Mark Cohen , When to Use Passive Voice , 48 COLO . LAW ., Jun . 2019 , at 8 , 8 . 8 . Susie Salmon , Not to be ? Like , Ever ?, 54 ARIZ . ATT ’ Y , May 2018 , at 10 . 9 . Anita S . Krishnakumar , Passive-Voice References in Statutory Interpretation , 76 BROOK . L . REV . 941 ( Spring 2011 ). 10 . Cohen , supra note 6 , at 8 . 11 . Id . 12 . Id . 13 . Cohen , supra note 6 , at 8 . 14 . Garner , supra note 5 , at 35 ; Salmon , supra note 7 at 10 . 15 . Cf . Cohen , supra note 6 , at 8 . 16 . Garner , supra note 5 , at 35 . 17 . Peter Siviglia , Effective Contract Drafting ( pt . 5.1 ), 88
N . Y . ST . B . J ., Aug . 2016 , at 44 , 45 .
IN MEMORIAM
Paul C . Germolus 1967-2021
Thank you for your friendship , your contributions to our community , and your service to our clients . You are missed .
Your friends , Dave , Steve , Michael , Rosanne , Charlene , Tammy , and Madison
FALL 2021 31