Do you know what the passive voice is? Some lawyers don’t. Some think it is any verb that is not “strong,” or any form of the verb be, or any past-tense verb. It is none of those, though all might be labeled “passive” in some sense.

Generally, it is a form of the verb be (be, am, is, are, was, were, being, been) and a past participle. If the verb works with have, as in “have _____,” then it is a past participle. For example, in the sentence “I have baked,” the word baked is a past participle. The word written is a past participle here: “I have written.” When you combine a form of be with a past participle, you get the passive voice: “The pie was baked. The book was written.” Test yourself. What is the passive-voice construction here?

• The test might have been easier for students if it had been designed to measure their memories.

Remember, the passive voice requires a be verb and a past participle. Been easier is not passive because easier is not a past participle. The passive voice construction is been designed.

With the passive voice, the subject of the sentence is not doing the action; the subject is being acted upon. And it is possible to leave the actor—the doer of the action—out of the sentence entirely. Thus, the passive voice has two natural consequences.

First, the normal reader expectation of actor-action-thing acted upon, which fits the typical English order of subject, verb, object, is altered. Instead, it becomes thing acted upon-action-actor. Or, because you can leave out the actor, it can become thing acted upon-action. In other words, sentences can be in natural order, like this:

• I sent the letter.

Or they can be in an atypical order, like this:

• The letter was sent [by me].

Second, the passive voice tends to emphasize the thing acted upon. It removes the actor from the sentence or places the actor in a prepositional phrase at the end. Thus, the passive voice affects emphasis in the sentence.

Both these consequences of the passive voice suggest legitimate uses. Lawyers may want to change the order of the actor and action in the sentence, and lawyers may want to obscure the actor in a sentence or eliminate the actor completely. For example, in the next sentence, the emphasis is on the letter, not on the sender:

• The letter was sent.

In the next sentence, the actor is intentionally hidden:

• The files were lost.

Using the passive voice in these ways is fine, as long as you do it intentionally and sparingly.

But the passive voice has drawbacks, too. It requires more words than the active voice, so it makes sentences longer. The passive voice is also dry and dull and can put readers to sleep. And when overused, the passive voice can seem evasive. Better writers use the passive voice deliberately but with thought, and not mindlessly, as a default sentence construction.