When Should Lawyers Use Passive Verb Forms

Legal writing demands precision and clarity, and the choice between active and passive voice can significantly impact the effectiveness of legal communication. While active voice generally promotes directness and conciseness, there are specific circumstances where the passive voice serves as a valuable tool for lawyers. Understanding these nuances allows legal professionals to craft arguments, draft documents, and present information with optimal impact.

Understanding Active and Passive Voice

Before diving into the specific scenarios where passive voice is advantageous, it’s crucial to understand the fundamental difference between active and passive voice.

• Active Voice: In active voice, the subject performs the action. The structure follows a Subject-Verb-Object order. For example: "The defendant signed the contract." (Defendant = Subject, Signed = Verb, Contract = Object).

• Passive Voice: In passive voice, the subject receives the action. The structure is often a form of the verb "to be" + past participle of the main verb. The actor performing the action may be included with "by," but it is often omitted. For example: "The contract was signed by the defendant." (Contract = Subject, Was signed = Verb).

When Passive Voice is Appropriate for Lawyers

While legal writing often benefits from the directness of active voice, passive voice has several legitimate uses in the legal field. Here are specific scenarios where its use is not only acceptable but often preferred:

1. Emphasizing the Action, Not the Actor:

• Focusing on the Outcome: Sometimes, the action itself is more important than who performed it. Passive voice allows you to highlight the outcome or the event, directing the reader's attention to the result rather than the individual responsible.
  • Example: Instead of "The judge dismissed the case because of lack of evidence," you might write "The case was dismissed due to lack of evidence." The focus shifts to the dismissal itself, which is likely the key piece of information for the reader.
• Protecting Confidentiality: In situations where revealing the actor could compromise confidentiality or privilege, passive voice offers a way to describe the action without disclosing the source.
  • Example: Instead of "Our client reported the incident to the police," you could say "The incident was reported to the police." This avoids directly naming the client while still conveying the fact of the report.

2. Avoiding Blame or Accusation:

• Maintaining Neutrality: In sensitive legal documents, such as settlement agreements or investigative reports, using passive voice can help maintain a neutral tone and avoid assigning blame prematurely.
  • Example: Instead of "The company failed to implement adequate safety measures," you might write "Adequate safety measures were not implemented." This phrasing is less accusatory and focuses on the deficiency rather than the company's alleged failure.
• Reducing Liability: Lawyers sometimes use passive voice strategically to mitigate potential liability. By obscuring the actor, they can create ambiguity and make it more difficult to pinpoint responsibility.
  • Example: Instead of "The technician made an error during the procedure," you could write "An error was made during the procedure." This is a subtle shift, but it can be effective in diffusing blame.

3. Maintaining Objectivity and Formality:

• Formal Legal Writing: Passive voice is often perceived as more formal and objective than active voice. This can be beneficial in legal documents that require a detached, professional tone.
  • Example: Instead of "We reviewed the documents carefully," you might write "The documents were reviewed carefully." The latter sounds more authoritative and less personal.
• Judicial Opinions: Judges frequently use passive voice in their opinions to convey impartiality and to emphasize the legal principles rather than their own personal opinions.
  • Example: "The motion was granted based on the precedent established in Miranda v. Arizona." This statement focuses on the legal basis for the ruling, not the judge's decision-making process.

4. Describing Processes and Procedures:

• Technical Documents: When describing established processes, regulations, or protocols, passive voice can be effective in emphasizing the steps involved rather than who performs them.
  • Example: Instead of "The inspector certifies the equipment annually," you could write "The equipment is certified annually by the inspector." The focus remains on the certification process itself.
• Legal Statutes and Rules: Statutes and legal rules are frequently written in passive voice to ensure that they apply universally, regardless of who is implementing them.
  • Example: "A notice must be served within 30 days of the filing of the complaint." This phrasing emphasizes the obligation to serve the notice, not the person responsible for doing so.

5. When the Actor is Unknown or Irrelevant:

• Unidentified Actors: In situations where the identity of the actor is unknown or unimportant, passive voice is a natural and appropriate choice.
  • Example: "The evidence was tampered with." It may not be known who tampered with the evidence, but the fact of the tampering is still significant.
• Irrelevant Actors: Sometimes, the actor is so obvious or self-evident that it doesn't need to be specified.
  • Example: "The law was broken." It is understood that someone broke the law, but the specific individual may not be relevant to the immediate discussion.

6. Varying Sentence Structure for Readability:

• Avoiding Monotony: Overuse of active voice can lead to repetitive sentence structures, making the writing monotonous and difficult to read. Passive voice can be used strategically to break up the rhythm and improve flow.
  • Example: If several consecutive sentences begin with the same subject, consider using passive voice in one or two of them to create variety.

Potential Pitfalls of Passive Voice

While passive voice has legitimate uses, it's important to be aware of its potential drawbacks:

• Vagueness and Ambiguity: Passive voice can obscure responsibility and create ambiguity about who performed the action. This can be problematic in legal writing where precision is paramount.
• Wordiness: Passive voice often requires more words than active voice, which can make the writing less concise and impactful.
• Weakness and Indecisiveness: Overuse of passive voice can make the writing sound weak, hesitant, and lacking in authority.
• Loss of Clarity: In some cases, passive voice can make it more difficult for the reader to understand the meaning of the sentence.

Best Practices for Using Passive Voice in Legal Writing

To use passive voice effectively and avoid its pitfalls, consider these best practices:

• Use it Sparingly: Reserve passive voice for situations where it truly serves a specific purpose, such as emphasizing the action, avoiding blame, or maintaining objectivity.
• Be Deliberate: Don't use passive voice simply out of habit. Always consider whether active voice would be a better choice.
• Consider the Context: The appropriate use of passive voice depends on the specific context of the legal document. What is the purpose of the document? Who is the intended audience?
• Maintain Clarity: Even when using passive voice, strive for clarity and avoid ambiguity. Make sure the reader can easily understand the meaning of the sentence.
• Use "By" When Necessary: If it's important to identify the actor, include the "by" phrase to specify who performed the action.
• Proofread Carefully: Always proofread your legal writing carefully to ensure that you have used passive voice appropriately and effectively.

Examples of Effective and Ineffective Use of Passive Voice in Legal Writing

To further illustrate the principles discussed above, let's examine some examples of effective and ineffective use of passive voice in legal writing:

Effective Use:

• "The evidence was seized pursuant to a valid search warrant." (Emphasizes the action of seizing the evidence, rather than who seized it).
• "A settlement agreement was reached between the parties." (Avoids assigning blame for the dispute).
• "The defendant's motion to suppress was denied." (Maintains objectivity in a judicial opinion).
• "The procedure is governed by Rule 56 of the Federal Rules of Civil Procedure." (Describes a legal process).

Ineffective Use:

• "Mistakes were made." (Vague and obscures responsibility).
• "The report was written." (Unnecessary use of passive voice; "The attorney wrote the report" is more direct and informative).
• "It was believed that the defendant was guilty." (Weak and indecisive; "The prosecution believed that the defendant was guilty" is stronger).
• "The contract was agreed to by both parties." (Wordy and awkward; "Both parties agreed to the contract" is more concise).

Alternatives to Passive Voice

In some cases, there may be alternatives to passive voice that can achieve the same effect while maintaining clarity and conciseness. Here are a few examples:

• Use an Impersonal Construction: Instead of "The error was made," you could say "An error occurred."
• Use a Nominalization: Instead of "The investigation was conducted by the police," you could say "The police conducted an investigation."
• Use a Reflexive Verb: Instead of "The application was submitted by the applicant," you could say "The applicant submitted the application."

Conclusion

Mastering the use of active and passive voice is an essential skill for lawyers. While active voice should generally be preferred for its directness and clarity, passive voice has legitimate and valuable applications in legal writing. By understanding when and how to use passive voice effectively, lawyers can enhance the precision, objectivity, and impact of their legal communication. The key is to be deliberate in your choices, considering the specific context, purpose, and audience of your legal documents. Avoiding overuse and being mindful of potential pitfalls will ensure that passive voice serves as a powerful tool in your legal arsenal, rather than a source of confusion or ambiguity. By carefully weighing the benefits and drawbacks of each voice, you can craft legal writing that is both persuasive and effective.