What Is Passive Voice?
Passive voice is a class of grammatical constructions which all have the same basic feature: the subject takes no active role and instead receives the action. The passive voice generally emphasizes the receiver of the action and deemphasizes the doer. The passive voice reveals a focus on the person or thing acted upon rather than the acting person or thing. To say that an action is done by someone or something usually involves using the word by in the sentence.
Consider the following examples of passive voice: "The contract was signed by the attorney" and "The case was handled by the attorney." Each of these sentences has a structure wherein the receiver of the action is the subject of the sentence and the agent of the action is relegated to the end of the sentence. Passive voice is often indicated by the use of a form of the verb "to be" in combination with a past participle or adjective .
The following example would be considered non-passive: " The attorney signed the contract."
Whereas the examples below are in passive voice: "The contract was signed by the attorney." "The case was handled by the attorney." "The contract had been signed by the attorney." "An update will be provided to the client by the attorney." "The motion will be filed by the attorney" "The email will be sent by the attorney" "The files are being kept by the attorney" "The documents were destroyed by the witness"
And so on. This is not an exhaustive list of every verb form that indicates passive voice. When I come across what looks like a passive voice sentence; I often make a point to analyze it thoroughly and consider if I can rewrite it in active voice.
Passive Voice in Legal Texts
Passive voice is a popular fit in legal writing. And it’s not because we don’t know how else to say things. It’s because passive voice has its place as a tool for combatting potential outcomes of litigation.
Let’s take a brief look at some ways passive voice can be used in legal writing:
Depersonalization The court will review the claim of coercion by the defendant. COERCION BY THE DEFENDANT IS HEREBY DENIED. We find that there was no coercion in this case as a matter of law (or fact). VERDICT
If the word defendant or plaintiff is actually named in the passive voice it promotes tables-turning.
Beyond potential tables-turning, the use of passive voice and the non-personalized tone generally depersonalizes the case and the parties’ actions. Again, a smart move when things could go either way at trial.
Passivization of the Actor The plaintiff was thrown against the wall by defendant after defendant discovered that plaintiff had made several phone calls outside the presence of the defendant and his co-workers. The Plaintiff WAS THROWN against the wall.
This is a tongue-in-cheek example, of course. But the point is that sometimes the verb is more important than the actor – sometimes the verbs "threw" and "collided" are not kind to the actor. And therein lies the benefit of passive voice in legal writing.
Pros and Cons of the Passive Voice
While generally best avoided, the passive voice is not out of bounds in every situation. There are a limited number of contexts where it can be helpful to use the passive voice:
1. It’s impossible or impractical to identify the actor. For example:
Pursuant to the March 15 communication, a tax lien was filed on April 1, 2019.
It’s not clear who filed the lien. Not only that, but it’s probably not a good idea to go looking for a person to blame. The situation was not good, and there was a lien. It doesn’t really matter who created the problem; the problem already exists, and it’s not going away on its own.
2. The actor is unknown. For example:
According to Rebecca Smith, "Boarding Saturday, April 27, 2019, between 1240 and 1255 hours, a CAT-A-A aircraft was observed displaying a total loss of circumferential engine containment while in the engine operating envelope."
You want to quote the source here, right? Rebecca Smith doesn’t exactly sound like a veterinarian. From context and some judicious Googling, it’s clear that Rebecca Smith is a passenger in the plane. But you have no way to identify a specific passenger—at least not without more research than most lawyers have time for. What do you do? The answer seems clear: the passenger "observed" the event, but "passenger" is known. So in this case, the passive voice is appropriate—Rebecca Smith "observed" the event, though she did not do so in brackets-flanked first person.
3. You want to remove the actor (e.g., to avoid assigning blame). For example:
Due to an administrative oversight, a tax lien was filed unexpectedly, in error.
You don’t want to name your administrative oversight. While it might be the bozo in charge on the day of the problem, or the accountant who sat on it and then forgot, it might actually be the entire department under someone’s proverbial bus. In that case, it’s more important to avoid pointing fingers—and it may be better not to name the department at all—than to clearly convey the severity of the issue. This is a case where the passive voice can tread lightly and keep your script from becoming melodrama.
Active vs. Passive Voice
When it comes to deciding whether to use active or passive voice in your legal writing, the context is what’s most important. Broadly, active voice should be used when you want the writing to sound forceful and decisive, and more vivid and immediate. Passive voice has its uses too, when you want to sound humble or diplomatic. According to grammar experts, the basic difference between active and passive voice is that in the former the subject of the sentence is doing the action. In the latter, the subject is acting on something else. Put another way, the agent is the one who is making the action happen, while the passive subject is the one receiving the action.
Examples include: The attorney completed the contract regularly and thoroughly for a client without any errors . (active) The contract was completed regularly and thoroughly by the attorney for a client without any errors (passive). Some English style guides say the passive voice is to be avoided wherever possible, while others recommend its judicious use when it would make the writing sound less blunt.
There are times in legal writing when passive voice is appropriate. For example, if there is a chance the result may not be favorable to your side. In that case, using passive voice — like, "There were discrepancies in Mr. Smith’s 2012 income taxes" — will reduce the sting. On the other hand, if you want the reader to know who is responsible for what — like, "The Hubble Space Telescope was launched in 1990" — then active voice is what’s called for. "NASA launched the Hubble Space Telescope in 1990."
How to Use Passive Voice in Legal Writing
While it’s essential to be precise in your writing, it’s also important to be concise. If there’s a way to say something in the active voice that will be more precise than alternative versions phrased in the passive voice, you should do it. However, there are plenty of cases where (often at the end of a long sentence) using the passive voice will produce a more precise statement than alternatives in the active voice.
For example, consider these two sentences:
A person caused the accident.
The accident was caused by a person.
Hopefully, you can see that the second version holds information back: we know that a person did the causing, but we don’t know who the person was. Sometimes this is what you want, such as when you’re talking obliquely about someone who has a secretive affiliation with your parties. However, in most legal documents, you want to be more specific and clearly identify who is responsible for the action. Because of this, you should always look for ways to make your passive voice constructions more precise. Some tips include:
Not all cases where the passive voice improves precision will be so straightforward. In the example below, we know the pronoun "he" is doing the disposing, but we’re not given any information about who he is. We need more details.
The car was disposed of by him.
He disposed of the car.
In many cases, you will need language like this to protect your clients. In the case above, the detail the writer chose to omit is a critical part of the story and gives the reader more information about how the car was disposed. If the detail had been relevant to the case—an agent for one of the parties has disposed of a piece of evidence from the scene—this would leave the door open to confusion, or even to later arguments that the car may not have been disposed of by the party the writer is attempting to shield in the first place. You can negate all of that by including just a couple more words in your passive-voice construction.
So, in this case it would be far more precise to describe the car’s disposal as follows:
The car was disposed of by the plaintiff’s agent.
Passive Voice Pitfalls
Common mistakes legal writers make relate to their tendency to confuse passive voice with passive language. Often, passive voice incorrectly used is a product of a lack of clarity, while passive language obscures critical information.
Legal writers often employ passive voice when they haven’t completely thought through their material, and inserting passive voice is an easy way to mask any uncertainty. However, the result tends to be a loss of intent and ambiguity as to which party bears the risk. An example:
General contractor took all necessary steps to ensure that work was in accordance with contract documents. General contractor took all necessary steps to ensure that work was in accordance with contract documents to ensure compliance with the Contract Documents. The writer does not know who bears the risk if the work is discovered at final inspection to have not been completed in accordance with the contract documents.
In the second example , the use of passive language there is no clear subject performing or omitting the verb "ensure." A critical issue arises from the difference in meaning between the two examples. Consider the dispute and the remedy sought: The underlying dispute is between the owner and general contractor as to whether general contractor complied with its obligations to construct the work pursuant to the contract documents. If general contractor’s individual employees are cited as having failed to construct the work to conform with the contract documents, with no mention of whether those individuals were acting in an official, on-site, capacity, or having such tasks assigned to them, it becomes very difficult to understand the specifics of the breach, or to identify the culpable party, thus impeding the intent of the document. Careful attention to avoiding passive language can minimize the critical material that is lost with ambiguous language.