Category Archives: Grammar and Punctuation

The passive voice … is used by lawyers.

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

The passive voice is frequently censured and widely condemned. Why is so much bad press received by the passive voice? Oops. Why does the passive voice receive so much bad press?

Lawyers overuse it, and its overuse makes for wordy, dull writing.

Quick review: The passive voice relies on a be verb (most commonly was, were, and been) plus a past-tense verb (technically past participle). All the following are in the passive voice (be verb and past-tense verb in italics):

  • Mistakes were made.
  • The contract was signed.
  • The DNA has been collected.

By the way, a sentence like The statute is applicable might be undesirable (I’d prefer The statute applies) but it’s not in the passive voice. Yes, it has a be verb (is), but applicable isn’t a verb.

In the examples, we can see a key feature of the passive voice: The doer of the verb is not the subject of the sentence. In fact, the doer of the verb is missing from the sentence entirely. Mistakes were made. Who made them? We don’t know. We can put the doer of the verb into a passive-voice sentence, but we have to attach the doer with a prepositional phrase at the end:

  • Mistakes were made by my staff.
  • The contract was signed by Christina Duran.
  • The DNA has been collected by Officer Kiser.

In the active voice, these sentences would be more vigorous and more concise:

  • My staff made mistakes.
  • Christina Duran signed the contract.
  • Officer Kiser has collected the DNA.

Now we can explain the bad press. When we overuse the passive voice in legal writing, we produce dull prose two ways: We rob the writing of doers, of actors, of action. Stuff just happens—no one does it. Or we name the doers, but they’re tacked on at the end—something was done by someone. That’s wordy.

Hiding the doer and producing wordy prose can be bad things in legal writing, and the experts agree:

“The passive voice results in a wordier sentence … and often obscures the actor.”1

“The passive voice creates two problems. It uses more words than active voice, and it risks creating ambiguity.”2

“Generally, prefer the active voice over the passive voice for several reasons: It is more concise.… It uses a more vigorous verb.”3

But we don’t forbid all passive-voice constructions; the passive voice has legitimate uses, and here are three.

  1. 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. The focus is on the recipient of the action, and the doer of the action is unimportant. Treyco’s account was frozen, not Mercury’s account. This sentence focuses on which account was frozen, not on who did the freezing.
  3. The appearance of responsibility is being avoided. The emails have 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 avoid responsibility a lot, your readers will figure it out.

So the passive voice isn’t wrong; it has legitimate uses in legal writing. It is overused by lawyers (passive). Lawyers overuse it (active). So when you edit your writing, check for passive-voice constructions—maybe do a search for was and were. When you spot the passive voice, ask yourself, “Do I need the passive voice here?” If you don’t, the active voice will be more vigorous and more concise.

Wayne Schiess’s books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

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1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 659 (3d ed. 2011).

2. Richard C. Wydick & Amy E. Sloan, Plain English for Lawyers 29 (6th ed. 2019).

3. Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 514-15 (5th ed. 2010).

When Verbs Become Nouns

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It

In legal writing, we often overuse nominalizations.

Some legal writing contains nouns that could have been verbs. These nouns wanted to be verbs—they really did. But lawyerly habits and the default patterns of legal writing often tempt us to use the noun form instead.

Nouns that could’ve been verbs are called nominalizations. (That’s a big word, and experts have coined other, catchier names: hidden verbs, buried verbs, zombie nouns.) Here’s what they look like:

  • The prosecutor’s expectation was that defense counsel would make an objection.

That sentence contains two nominalizations: expectation and objection. Let’s revise the sentence by turning those nouns back into verbs:

  • The prosecutor expected defense counsel to object.

This example shows two benefits of using verbs in place of nouns.

  1. By using verbs instead of nouns, you save words: this example went from 11 words to 7. Sometimes when you shorten a sentence, you lose some meaning or some key content, but not here. Fixing nominalizations almost always allows you to retain the meaning but use fewer words. That’s concision.
  2. By using verbs instead of nouns, you invigorate the text: the verbs in the original were was and make. Nothing wrong with those verbs, of course, but they’re not forceful or vigorous. The revision uses stronger verbs: expect and object.

Nominalizations aren’t wrong or grammatically incorrect, but they’re overused in legal writing. As a result, legal-writing experts often single them out for comment:

“Watch for and replace nouns created from stronger verbs.”1

“Use base verbs, not nominalizations.”2

“Nominalizing is one of the most serious afflictions of legal prose, draining a sentence of vitality.”3

“Nominalizations are large and clunky, and they serve only to confuse the reader by weighing down sentences.”4

Here are some of the most common nominalizations in legal writing. Think of the verb form you could use instead:

be in violation of
bring suit against
come to a resolution
conduct an analysis
enter into a settlement
give notice to
make a payment
make a recommendation
make an argument
perform an examination
place emphasis on
provide an explanation
take into consideration

Why do legal writers over-use nominalizations? I have two theories.

First, nominalizations are typically longer, bigger words, and they sound formal. Sometimes we legal writers want to sound formal, serious, or even heavy. Although there’s nothing wrong with sounding formal, a less-formal tone is usually more reader-friendly.

Second, we often think conceptually—we think of things, of nouns. Returning to our first example, if I’m the writer, I’m thinking about an expectation, and the expectation is about an objection. So I naturally end up writing a sentence with the nouns expectation and objection. Again, there’s nothing wrong with thinking of concepts and then writing those concepts down. But on the edit, check for nominalizations and see if you can shorten and invigorate your prose.

Here’s one more example. Spot the two nominalizations in this sentence:

  • The insurer had no authorization to make a distinction between existing patients and new patients.

The two nominalizations are authorization and distinction. By using their verb forms instead, we cut the weak verbs had and make, we enliven the text by focusing on actions rather than things, and we shorten it from 15 words to 12:

  • The insurer was not authorized to distinguish existing patients from new patients.

So when you edit, look for nominalizations—nouns that could have been verbs—and when you can, return them to their livelier form.

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It

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1. Terri LeClercq, Guide to Legal Writing Style 58 (4th ed. 2007).
2. Richard Wydick, Plain English for Lawyers 23 (5th ed. 2006).
3. Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well 129 (2d ed. 2002).
4. Charles N. Insler, Kill Nominalizations, Breathe Life Back into Briefs, 59 No. 10 DRI For Def. 99 (Oct. 2017).

Ending with prepositions

It’s not wrong. It’s less formal.

“There is no rule against ending sentences with prepositions.” Texas Law Review, Manual on Usage & Style 55 (13th ed. 2015).

Is that authoritative? After all, the MoUS is written by students. Yet Bryan Garner agrees: the “rule” against ending a sentence with a preposition is “a superstition that just won’t die.” The Redbook 195 (4th ed. 2013). Strunk and White say so, too: “Not only is the preposition acceptable at the end, sometimes it is more effective in that spot than anywhere else.” The Elements of Style 77-78 (4th ed. 2000). Yes, that’s the fourth edition from 2000, but the quoted language is unchanged from first edition in 1959 (see page 64).

Canvass the style manuals and writing references and websites—the answer is near universal. End a sentence with a preposition if you need to. Prepositions are perfectly good words to end sentences with. If you think there’s a rule against ending with a preposition, you don’t know what you’re talking about.

So what’s the deal?

First, a preliminary matter. This blog is about writing, not speech, but ending with a preposition is fine in conversation, right? That’s something I hope we can agree on. In particular, we often end with prepositions when asking questions: Who are you talking about? Where did he disappear to? What did you step on? Most of us would never speak these stiff, over-formal versions: About whom are you talking? To where did he disappear? On what did you step?

Back to writing. Despite the experts (the MoUS, Garner, Strunk & White) the supposed rule against ending propositions still causes lawyers to write sentences like this:

  • Attached are three local rules of which you should be aware.
  • A hammer, not an ax, was the weapon with which he struck the victim.
  • The deponent could not recall in which folder she saved the file.

These sentences are grammatically correct and have no ending prepositions, but to me they’re stilted and unnatural. They don’t flow.

One reason for these stilted sentences is that we know other legal writers believe the supposed rule, and we don’t want to risk annoying those readers or, worse, seeming semi-literate. And so the circle spins on. We know it’s okay to end with a preposition, but we also know some of our readers don’t know it’s okay, so we avoid doing it, perpetuating the no-ending-preposition practice.

What should we do? Rather than treat ending prepositions as wrong or right, a better approach is to think of them as a matter of formality and emphasis.

Ending with a preposition isn’t wrong. It’s less formal. That realization alone leads to some easy decisions. Appellate brief? A highly formal document for an audience whose grammar preferences you probably don’t know well. Avoid ending with prepositions. Memo to a supervisor? A moderately formal document for an audience whose preferences you might know. Unless the audience objects, an occasional ending preposition is acceptable. Work-related email to a colleague? An informal document to a well-known audience. Ending with prepositions is fine.

Ending with a preposition is also a matter of emphasis. You always have options, so you can always avoid ending with a preposition, but knowing when to do it requires experience and what we often call “a good ear.” Here’s an example.

Suppose you want to convey this idea:

  • Silver Partners refused to join any venture Hooper was part of.

That sentence strikes me as succinct and forceful. But you have several options that don’t end with a preposition.

  • Silver Partners refused to join any venture if Hooper was part of it.

Or this:

  • If Hooper was part of the venture, Silver Partners refused to join.

But don’t choose this option:

  • Silver Partners refused to join any venture of which Hooper was part.

It’s always possible to avoid ending with a preposition, and avoiding has no risk. But I offer these two points.

(1) Don’t write the stilted, ending-preposition work-arounds like that last example (of which Hooper was part); they sound unnatural and affected.

(2) If the preposition-ending sentence creates just the tone and emphasis you want, do it.

After all, there is no rule against ending a sentence with preposition.

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Mastering Appositives

The Two Types of Appositives: Restrictive and Nonrestrictive

An appositive is a noun or noun phrase that restates or renames another noun. Here, the noun Robin Lang restates or renames defendant:

  • The defendant, Robin Lang, did not hire a lawyer.

But properly punctuating appositives depends on the type of appositive, and the type depends on whether the appositive is essential or additional to the meaning of the original noun. The first type (essential) is called a restrictive appositive. This type of appositive renames or restates the noun in a way that is essential to a full understanding of the sentence. The appositive defines or restricts the original noun in a way that differentiates it from other nouns of that type. For example:

  • The politician Jordan Lopez gave the commencement address.

This sentence implies that there are multiple politicians and that the one who gave the commencement address was Jordan Lopez. That makes sense. If the appositive were set off with commas, it would create confusing implications:

  • The politician, Jordan Lopez, gave the commencement address.

This sentence implies that there is only one politician (in the world?) or that the politician is being differentiated from other nonpoliticians in some way. The commas are unnecessary. Another example using my own name:

  • The dean asked Wayne Schiess the legal-writing teacher to edit the manuscript.

This sentence implies that there are multiple people named Wayne Schiess and that the dean asked one of those Wayne Schiesses—the one who is a legal-writing teacher—to edit the manuscript. Thus, the sentence doesn’t really make sense and should be punctuated like this:

  • The dean asked Wayne Schiess, the legal-writing teacher, to edit the manuscript.

That example, with commas, is a nonrestrictive appositive. Nonrestrictive (also called “nonessential”) appositives present what might be considered additional information, offered as extra or “by the way.” You’d still have a sensible sentence without the appositive.

Returning to our first example:

  • The defendant, Robin Lang, did not hire a lawyer. This means–The defendant [, whose name is Robin Lang, by the way,] did not hire a lawyer. And without the appositive, it would still make sense–The defendant did not hire a lawyer.

Besides a pair of commas, you have other punctuation options for nonrestrictive appositives. If the restating phrase comes at the end of the sentence, use a comma and a period:

  • The party who did not hire a lawyer was the defendant, Robin Lang.

And you may set off appositives with a pair of parentheses, a pair of dashes, or a dash and a period:

  • The defendant (Robin Lang) did not hire a lawyer.
  • The defendant—Robin Lang—did not hire a lawyer.
  • The party who did not hire a lawyer was the defendant—Robin Lang.

The most common mistake I see in using nonrestrictive appositives is failing to include the second comma:

  • Wrong: The defendant, Robin Lang did not hire a lawyer.
  • Wrong: Equitable adoption, a common-law doctrine may apply even in the absence of a court order.

The first example needs a comma after Lang; the second needs one after doctrine.

The differences between restrictive and nonrestrictive appositives come up occasionally in legal writing. If there is only one party on a particular side (one buyer, one defendant, one appellee), then the appositive is likely to be nonrestrictive:

  • The buyer, National Insurance, retained its trial counsel to handle the transaction.

But if there are multiple parties on one side, a restrictive appositive may be appropriate (depending on the context).

  • The respondent Taylor Mura refused to cooperate with the respondent Media Group, LLC.

And of course, in legal writing, we sometimes omit the article the before party appellations:

  • Respondent Taylor Mura refused to cooperate with respondent Media Group, LLC.

Properly punctuating appositives isn’t always simple, but it’s a fundamental and basic skill in legal writing. It’s something careful writers do well.

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Writing knowledge is like an onion

Level 0 writers think nothing of writing:

  • The lawyer that argued the case …

Level 1 writers have learned enough to believe that one must always refer to a person with personal pronouns (and never with that or it), and so they write:

  • The lawyer who argued the case …

Level 2 writers have looked up this topic and read enough reliable sources to know that there is no such rule, that using that for a person is a widespread and historically common usage, and that it’s primarily misguided sticklers who try to prohibit it; so they go ahead and write:

  • The lawyer that argued the case …

Level 3 writers believe that enough misguided sticklers are in their reading audience that it’s worth conforming to the nonrule to avoid creating the even the mistaken impression of an error; so they write:

  • The lawyer who argued the case …

Level 4 writers have enough confidence in their own writing credibility that they focus on producing clear, readable prose in their own voice; they don’t manipulate the prose to conform to nonrules enforced by misguided sticklers; I don’t know what they would write. 

Legal Writing Nerd: Be One