Passive Voice in Legal Writing
Passive voice is often considered the enemy of direct, clear writing—especially in legal writing. Law firms, law schools, and legal writing instructors tend to discourage passive voice with fervor.
Passive voice tends to obscure subject, agent, and action. In active voice, the sentence states who did what to whom. Even if the object of the action is omitted, readers usually guess who the subject will be, and they may guess who the agent will be as well. In the example below, we’ll even keep the example close to home for lawyers:
Glyphic, Inc. provided services to benefit clients under a contract it entered into with Meritorious, LLC.
If we modified this sentence to passively voice, we would create something difficult to parse:
Services were provided to benefit clients under a contract that was entered into with Meritorious, LLC by Glyphic, Inc.
For passive sentences, readers must make an extra cognitive step to identify subject, agent, and action. After all, the person or thing performing the action is now a prepositional phrase and no longer the subject, so the structure signals that it was left out of the action.
This is a legal passive:
Presumptions are disfavored in criminal cases.
Technically, the sentence is not passive. The first sentence active form is:
We disfavor presumptions in criminal cases .
Disfavor is the action, not the implied we, and the object of this action is the presumptions. The implied we is the subject. But if we left out the implied we, we’d create something difficult to parse:
Presumptions are disfavored in criminal cases.
This is a legal passive:
A violation of this section is not sufficient to void the certificate of title.
Technically, the sentence is not passive. It’s active in its plain-active form:
We don’t consider a violation of this section to be sufficient to void the certificate of title.
But if we modified it to passively voice, we would create something difficult to parse:
A violation of this section is not considered sufficient by us to void the certificate of title.
Sometimes, adjusting passive sentences to an active voice creates a very different meaning. Even a single word can result in a sentence that doesn’t make sense to most people. For example:
A waiver of defects or discrepancies shall not invalidate a utilization schedule. (active voice)
We consider that a waiver of defects or discrepancies doesn’t invalidate a utilization schedule. (passive voice)
But most people would say that a waiver of defects or discrepancies does not invalidate a utilization schedule. The meaning is different because of the shift to passive voice.
The reason legal writers embrace passive voice
The reasons legal writers prefer passive voice often stem from the needs of the legal profession and the writers’ clients, as well as the desires for clear, impartial communication. A significant reason can be to boost neutrality. It can make the document less argumentative, and even prevent some of the author’s bias from showing through. That neutrality is encouraged by not always naming the subject of and actor in a legal document. Further, in common law (as in much of the English-speaking world), laws and rules are organized by subject rather than actor. When preparing a rule or statute, the author might write in the active voice at first, then convert it into passive voice to make it fit that desired flow.
In fact, you’ll often see the passive voice used where the legal writer does not need to name the actor. For example, they might write "X was done" where legal writers, as noted earlier, might prefer to write "Y did X." And the active form would read poorly in some circumstances. For instance, if their passive voicing were on a pleading, then "Y did X" would read "X was done by Y." If the law did not require the author to name the actor, then that addition of "by Y" would add nothing, but also run the risk of modifying the meaning of the statement.
One important use of passive voice in legal writing is with a request for relief. In such notices, and also in most other subjective statements, the passive voice preserves neutrality. It allows the author to suggest what they want without making a personal assertion. "X wants Y" would sound much more like an argument, while "it is requested that Y be done" sounds more dry, dreary, and neutral.
Benefits of passive voice in legal drafting
So, while passive voice is often admonished in legal writing, there are some reasons why you might elect to passively construct a sentence. Let’s talk about the advantages of passive voice.
As a practical matter, it can clarify your writing. In some cases, writing in the active voice without the "idiot" pronoun in the subject place can create a he-said, she-said scenario.
Consider this: "The plaintiff received a settlement offer from defendant’s insurance company and the plaintiff tentatively accepted the offer."
Who tentatively accepted?
If you have a he-said, she-said scenario, you might want to passively construct the sentence to avoid any confusion.
So, you might want to consider: "A tentative acceptance of the settlement offer by the plaintiff was communicated to defendant’s insurance company."
The tentative acceptance here is being communicated to somebody, so how the plaintiff communicated the acceptance does not matter. In other words, don’t focus on the "how" or "who," focus on the legal outcome: the communication of the tentative acceptance.
Another big reason to passively write is that it makes something happen. In general—just as with the aforementioned silence in a courtroom—lawyers writing about the law tend to be engineers of silence. To say nothing of what happened, because say nothing is what the law says—not say nothing which happened.
And sometimes, silence is useful. But when you want something to happen, passive constructions can make it happen in a way that active constructions cannot. A clear example of this is "The USCIS form was filed on time."
Filing is an action. It happened. But in "The USCIS form was filed on time," the action is downplayed because the filing is passive.
When you want something to happen and you want to communicate that it happened, then you want to use passive voice to clearly convey what happened. In the case of the USCIS form, we’ll do it like this: "On Tuesday April 3rd at 8:00 a.m., John submitted USCIS form I-9 for filing."
It also keeps an objective tone. There is nothing wrong with an objective tone (that’s the way the law is written) but in many cases, something needs to happen.
For that, you need an objective tone to keep in the mind of your reader—in this case, the court—that just because something is written, it does not mean that it happened.
Without passive voice, we have this: "The statute requires that the plaintiff demonstrate an injury-in-fact."
But you want to demonstrate that this statute "requires that the plaintiff demonstrate an injury-in-fact."
So, here, use passive construction to emphasize that by law, the plaintiff must demonstrate something. That is what is being done in this case:
"By operation of law, an injury-in-fact must be demonstrated by the plaintiff in order for the plaintiff to have Article III standing."
The plaintiff has not demonstrated anything. But by law, by the nature of the law not the plaintiff, the plaintiff must demonstrate an injury-in-fact.
See how that works?
In legal drafting, passive voice—even though it is chastised—is sometimes necessary for clarity, objectivity and to convey an action on the law.
The downside of using passive voice in legal writing
While there are circumstances in which the passive voice may be an appropriate choice, there are also many situations in which the drawbacks of the passive voice outweigh the benefits.
One of the major criticisms of passive voice is that it can lead to ambiguous sentence structure. This may be due to the fact that the agent often drops out of the passive construction and the sentence becomes unintelligible (The room will have been painted). Or it may result from the agent of the action becoming the target of the action (The painting was admired or The hallway was posted with signs). The reader cannot determine who is performing the action, and this can lead to frustration, misunderstanding, and misinterpretation.
Passive voice can also add a burden to readers trying to sift through legal documents because passive constructions are often longer than the active form of the sentence. For instance, a sentence may be expressed as follows in both the past and past perfect tenses:
Present Perfect Passive
The decision has been made .
Past Perfect Passive
The decision had been made.
It is likely that both of these sentences are in the passive voice, yet they are rendered in the passive perfect longer than if they had been expressed in the active perfect:
Present Perfect Active
They have made the decision.
Past Perfect Active
They had made the decision.
In the following example of a poorly constructed passive sentence, the writer does not make clear who was injured in a car accident:
As a result of the car being driven off the road, bruises were received to the leg of the passenger as well as multiple contusions to the face of the driver.
In a better version of this sentence, the driver and passenger would be listed as subjects in the active voice:
The driver and the passenger received multiple contusions to the face, and the passenger received bruises on his leg after the driver drove off the road.
Striking a balance between passive and active voice
In legal writing, as in all sorts of writing, balance is the key to making sure your communication both gets through and works for the audience you are addressing. That means keeping an eye on whether you are using passive voice too much.
As with most things in life, there is usually no one right answer. For legal-drafting purposes, for instance, passive voice can sometimes provide for greater clarity, particularly where the person subject to off-the-shelf rules cannot be individually identified or isn’t the main focus of the document. In such instances, "use of the passive voice is appropriate to convey that the subject is subject to a duty that he or she is not waiving either explicitly or implicitly." In other times, the passive voice is helpful in lending neutrality to the document and phrasing concepts in a manner that does not seem biased in any way or towards any party. This can come in handy very easily in arbitration documents, for example, where fairness policies papered onto the document may be seen as biased in favor of one party.
The problem of course comes when attempts to push Clerk-(Steil&Jenks) into being a passive voice fanatic begin. The best legal writers out there will advise that more often than not, the active voice should be favored. So when should you stick with the passive voice? (I’ll give you just 7 examples.)
- When the specific subject of the action is less important.
- When the specific subject of the action is unknown.
- When the actor is not the party doing the writing.
- When you want to show that the subject can be independent of the action.
- When you want to show that the subject was acted upon by something other than itself.
- When it’s clear that something is acting on something else and you want to emphasize the action instead of the actor.
- When you value formality.
The bottom line is that using passive voice all the time is just as bad as abusing active voice — it points out an imbalance in your writing that makes your written document hard to read. Instead, shoot for a natural blend of both passive and active throughout your document and stay focused on helping your reader understand what you’re trying to say.
Improving clarity in legal documents
Legal writing suffers not only from excessive passive voice, but also from convoluted syntax. While passive constructions are easy enough to identify — they use a form of the verb "be" (are, were, is, was, might be, etc.) — other complexity can be a little further off. Consider this for a moment: The deed was read by the grantors and acknowledged by them, then executed in three counterparts. The deed should be effective as of the date of its execution as provided January 1, 2000. I’ll give away my point now: this is cumbersome language that puts a wall between the audience and the substance of what is being said. In this paragraph, Who read the deed? Who more importantly, executed it? We don’t know. The phrasing in the excerpt tips us off to the fact that the deed is the subject. But it’s the parties to the deed that are of most interest . So we need to put the deeds behind us, take the act of reading and executing the deed and place those acts front and center where they should have been in the first place: The grantors acknowledged and executed the deed in three counterparts on January 1, 2000. This construction throws out two superfluous words (by and as) and also enhances clarity. And note that by using active voice, we’ve saved ourselves from potential issues down the road if the passive-voice construction is ever re-read and added to the chain of title. If someone later wants to record a deed and attempts to rely on the first deed as evidence of title, it may be that nothing clear is evidenced, because the second deed would have already "read" (by the passive construction) the first deed, and therefore we don’t know who read the deed, and no one may validly convey title to a deed that he or she "read" instead of executed, a valid deed.
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