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How to Use the Passive Voice in Legal Writing

September 18, 2011 Leave a comment Go to comments

Courts and attorneys generally prefer active sentences to passive sentences in legal writing. Nonetheless, there are certain situations in which passive sentences are useful.

In active sentences, the subject is doing the action. Take the sentence, “The court denied the motion.” The court is the subject, and it is doing the denying.

In passive sentences, however, the subject is inferred. A passive version of our example would be, “The motion was denied.” The court is still the subject, but the reader only knows that from the context, not the words.

Generally, active sentences improve legal writing because they are clearer and more precise. Passive sentences have a greater tendency to be vague or awkward.

Nonetheless, passive sentences are indispensable in legal writing when you wish to obscure the subject of a sentence. A classic example is Reagan’s quote, “Mistakes were made.”

If you are appealing a bad evidentiary ruling, you might say, “Judge Gunther admitted the hearsay evidence over trial counsel’s objection.” Yet, if you are appearing before Judge Gunther on a motion to reconsider his erroneous ruling, it may be advantageous to be less aggressive in your phrasing. A passive version of the same allegation would be, “The hearsay evidence was admitted over trial counsel’s objection.” Using the passive voice decreases the likelihood that Judge Gunther will feel personally attacked.

You may also find passive voice useful when you do not know who performed a particular action. The sentence, “A shot was fired,” allows you to include the critical detail of a shot being fired, even if you don’t know who fired it.

Finally, passive sentences may be helpful in preventing repetitive sentence structures. Starting multiple sentences with the same subject may be awkward. If the subject is obvious, including an occasional passive sentence may make your writing flow better.

Passive sentences are not grammatically incorrect, as some argue. The best legal writers use the passive voice selectively to create specific, intended results.

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