Pre-Law and 1L Tip: When to Avoid Passive Voice in Legal Writing!
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bar exam appealsThe Perils of Passive Voice in Legal Writing

As a first-year student in law school, (1L),  your schedule will include several required courses. One of the most important classes which you will take is Legal Writing. In Legal Writing, students learn how to conduct legal research, and how to write both objectively (i.e., legal memoranda) and, as an advocate (e.g., a trial brief or an appellate brief). (We will discuss writing objectively and as an advocate another time.)

Students quickly learn that being able to research and translate that research into written documents for the client is a very important skill that attorneys use throughout their careers.  Students also learn that legal writing can be a ‘quirky’ subject to understand.  It is ‘quirky’ because there are definite ‘do’s and don’ts’ which you have to remember. One of the most important rules in legal writing is that the writer must minimize his/her use of ‘passive voice’. Now usually, after I give students a detailed lecture on passive voice, several 1L’s will come up to me sheepishly, and confide that they never understood why something is ‘passive voice’.

What is Passive Voice?

Defining ‘Active’ and ‘Passive’ Voice

Let’s start by defining passive voice and looking at a few examples.

Technically, passive voice is defined as a ‘grammatical construction’.  And, in passive voice, the noun, or noun phrase, that would be the ‘object’ in an active voice sentence (e.g. the boy threw the ball), becomes the ‘subject’ in a passive voice sentence (e.g. the ball was thrown by the boy).  Now, I can hear what you are thinking.  You are thinking, “Say what? Huh?”

An easier way to check to see if you are writing in active or passive voice is to ask yourself who/what is doing the ‘action’ in the sentence. In active voice, the subject of the sentence is doing the action, while the ‘object’ is affected by the action.

So, in the example of ‘The boy threw the ball’—‘boy’ is the subject of the sentence, and he is doing the action in the sentence…(i.e., ‘throwing’). And, the ‘object’ of the sentence (the ball) is the receiver of the boy’s action (throwing). Thus, organizationally, in an active voice sentence, we have the subject (boy) followed by the verb (threw), followed by the object (ball). In a passive voice sentence, the ‘object’ becomes the subject. (e.g., The ball was thrown by the boy).

There is one other simple tip that can help you identify if a sentence is active or passive voice.  If the sentence ends with or would need to include the word by to make more sense, it is probably passive voice. For example, the sentence “The car was driven” is passive voice, because the sentence does not tell the reader who did the action of driving the car.  We would have to add, e.g. “The car was driven by Sophia.” This is passive voice. (“Sophia drove the car” would be active voice.)

So What’s Wrong With Passive Voice?

There are various ‘issues’ to be mindful of with passive voice. And, we can clearly see those issues when we first look at active voice.

1. An ‘active voice’ sentence is easier to understand. It is very clear, concise and easy for the reader to understand an “active voice” sentence.

2. An ‘active voice’ gets to the point! When you write using active voice, you also use fewer words. Thus, if you are trying to convey certain concepts, or to persuade the reader, he/she will remember the ideas/arguments that you are making much easier when you present them using active voice. In addition, when you use fewer words, you ensure that your sentences will not become too complicated, and that the meaning therein is clear.

3. Active voice keeps the reader’s attention. And, believe it or not, active voice keeps the reader’s attention much better than does a passive voice sentence. It jumps out at the reader and keeps them interested.

In contrast, passive voice sentences can become vague or more complicated because it may be unclear who/what is doing the action in the sentence.  For example, take a look at the following sentence. “The pistachio ice cream was eaten.” This is vague because we do not know who ate the pistachio ice cream.  Now, let us shift this to active voice. “The little girl ate the pistachio ice cream.” By changing the sentence to active voice, we can easily identify who the actor/subject of the sentence is (i.e. the little girl).

Using Passive Voice Sparingly and Strategically In Legal Writing

Many times, students ask if they must avoid passive voice completely.  There are certain times when you will want or need to use passive voice.  Specifically, in legal writing, you may use passive voice if you want to deflect attention from the subject/actor in a sentence.  For example, if you were representing a man name Joe Smith, who allegedly robbed a bank, you would want to phrase your sentence using passive voice. “The bank was robbed on Tuesday.” In this instance, you are using passive voice strategically, to deflect any attention from your client.  You can also use passive voice if the actor/subject of the sentence is unknown. “The apples were picked.” In that sentence, you do not know who picked the apples.

Although you may, at times, use passive voice sparingly and strategically, the general rule is that you want to use active voice in most of your legal writing. As I tell my students, in the words of famous chef Emeril Lagasse, you will learn to take your legal writing and “kick it up a notch!”  And, active voice is one important technique which helps you to do exactly that.

JD AdvisingThis post was written by Professor K. Day. Ms. K. Day teaches legal writing to first, second and third year law students at Wayne State University Law School. She teaches both basic and advanced legal writing skills. Ms. Day also served as a Visiting Assistant Professor of Legal Practice at Peking University School of Transnational Law in Shenzhen, China where she assisted in the design and implementation of the Legal Practice Program for the first western style law school in China.