Part 3 of 4
I recently read some writing advice offered by a capable lawyer with 10 years’ experience. The advice was offered in absolute terms, and I thought it was oversimplified. Here’s the advice with my own take.
“Never use passive voice.”
It would be difficult to follow this advice literally, and it’s not necessary to write a memo or motion or brief and never use the passive voice. Better advice for the passive voice would be avoid defaulting to the passive voice—use it sparingly but deliberately. I’ve written about the passive voice here:
In that post, I pointed out the drawbacks of the passive voice: that it can be wordy and dry and that it’s overused in legal writing. But I also acknowledged that it has its place. We shouldn’t forbid all passive-voice constructions; the passive voice has legitimate uses, and here are three.
1. When the doer of the action is unknown or irrelevant: The police were notified.
- We don’t know or care who notified the police; we’re just saying they were notified.
2. When the key focus is on the recipient of the action, not the doer of the action: Treyco’s account was frozen, not Mercury’s account.
- This sentence focuses on which account was frozen, not on who did the freezing.
3. To avoid the appearance of responsibility: The claim files had been deleted.
- This sentence hides the one who did the deleting. Avoiding the appearance of responsibility is occasionally useful in legal writing, but if you use the passive voice to hide responsibility a lot, your readers will figure it out.
Again, my view is that for high-caliber, sophisticated legal writing, absolute prohibitions typically aren’t the best advice. Inform yourself about the advice, consider your audience and purpose, and exercise your editorial judgment.
 In fact, in an example the lawyer displayed for another purpose, there were three uses of the passive voice in the first four sentences. All three uses were appropriate; I’m just pointing out that it’s not reasonable to advise, “Never use passive voice.”