Part 3 of 4
My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It
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.[1] 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.
My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It
_____
[1] 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.”