Some common problem in legal writing, a series--part 4: Passive voice
Passive voice
Do you know what the passive voice is? Many lawyers do not. Many believe 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 a general sense. 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 _____," (have walked, have written) then it is a past participle.
In the passive voice, the subject is not doing the action; the subject is being acted upon. So it is possible to leave the actor out of the sentence entirely. Thus, the passive voice presents two problems:
First, the normal reader expectation of actor/action/thing-acted-upon, which fits the expected English order of subject/verb/object, is subverted. Instead, it becomes thing-acted-upon/action/actor or, because you can leave out the actor, thing-acted-upon/action. In other words, sentences can be in typical order, like this one:
Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand
| Better Legal Writing
| Writing for the Legal Audience
| The Legal Memo: A Basic Guide
Do you know what the passive voice is? Many lawyers do not. Many believe 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 a general sense. 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 _____," (have walked, have written) then it is a past participle.
In the passive voice, the subject is not doing the action; the subject is being acted upon. So it is possible to leave the actor out of the sentence entirely. Thus, the passive voice presents two problems:
First, the normal reader expectation of actor/action/thing-acted-upon, which fits the expected English order of subject/verb/object, is subverted. Instead, it becomes thing-acted-upon/action/actor or, because you can leave out the actor, thing-acted-upon/action. In other words, sentences can be in typical order, like this one:
I sent the letter.But with passive voice, they get out of typical, expected order, and end up like this:
The letter was sent [by me].Second, the passive voice emphasizes the thing acted upon and obscures the actor. Of course, in legal writing you may want to obscure the actor, and you may want to emphasize the thing acted upon. For example, you may want to emphasize that the letter is being sent and de-emphasize who sent it. That's fine, as long as you do it intentionally and sparingly. But for most texts, better writers don't want to emphasize the thing that something was done to; they want to emphasize who did it. So better writers use the passive voice rarely.
The motion was filed, a hearing was held, and a ruling was issued.Are you emphasizing these three items, the motion, hearing, and ruling, or avoiding naming the actor? If so, this sentence is fine. If not--
The district attorney filed the motion, both lawyers attended a hearing, and the judge issued a ruling.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 voice; "easier" is not a past participle. The passive-voice construction is "been designed." In the active voice:
The test might have been easier for students if the professor had designed it to measure their memories.
Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand
| Better Legal Writing | Writing for the Legal Audience | The Legal Memo: A Basic Guide
Your blog statements are clear and brief, like good legal writing. I'll be recommending this to the lawyers at my company.
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Artful writing is artful writing. Avoiding the passive voice has more to do with developing your own voice than catering to some old rule of grammar. The last example here is almost irrelevant; the addition of a professors intent adds extraneous information.
Wayne says:
The last example was just a test to see if you could identify the passive voice.
Also, professor's
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