Tip 4 - Use the active voice, which speaks louder than the passive voice.
The active voice speaks louder than the passive. Indeed, this is more than just some catchy phrase that I made up to get you to remember a writing rule. What it means is your legal writing becomes more clear, direct, and concise simply by stating the subject and the action the subject performs or causes. The active voice effectively moves your sentence along to the point you are making. It grabs the reader's attention and focuses it on the 'doer' together with the act. Thus, it is 'louder' or more obvious or emphatic than its counter-part, the passive voice.
The passive voice takes away the focus from the actor and places it on what is being done. In essence, the subject is not causing the action but on the receiving end of it; hence, the word 'passive.' Generally, you can tell if a sentence is in the passive voice by its indicators: the to be verb form accompanied by the past participle (usually ending in -ed), for example, 'to be filed,' 'be sued,' 'was affirmed,' or 'get fired.' Now, writing in the passive voice is not wrong and sometimes it is necessary. But overuse of the passive makes your writing wordy, or even worse, creates uncertainty. This is because the passive voice sometimes leaves out the actor of the sentence, and the reader is left guessing who is actually doing the act. Look at the following passive sentence:
Before the year was over, the legal writing program had been approved.
The problem here is that we don't know who approved the program. Was it the managing partner of the firm or a consensus of all partners or was it the head office in another country? Who is responsible for the livelihood of this dedicated and deserving legal writing consultant? If it was written in the active voice, then the mystery would be solved and the consultant would know to whom she should send her invoices. Here is the active construction of the sentence:
The managing partner approved the legal writing program before the year was over.
Here is another example of the differences between active and passive voice:
The application instituted by Company X has failed to state a cause of action under European Community law and, therefore, should be dismissed and the cost of proceedings borne by the applicant.
The passive is not only wordy and heavy to get through but it also leaves out who should dismiss the action. Obviously, if it is written in a defense or rejoinder, the court reading the text knows the this statement is directed towards it, but if the sentence was written in a legal memo or academic article, then the reader will wonder if the actor is the Court of First Instance, the European Court of Justice, or even any one of the national courts. Compare the following active constructive, which adds the CFI as the omitted court.
The CFI should dismiss Company X's application and order it to pay the cost of the proceedings because the company failed to state a cause of action under EC law.
Not only does the active voice achieve greater clarity in this sentence, but it also omits needless words and follows the strong subject-verb-object rule that English readers expect. (See Tips 2 and 3).
Writing in the active voice should be your default writing style; however, as I mentioned before, sometimes it is preferable to write in the passive. Legal writing expert, C. Edward Good, discusses instances where the passive is preferable in his book Mightier Than the Sword: Powerful Writing in the Legal Profession:
- The actor is not as important or is unknown.
- The focus is on the receiver of the action and not who is doing the action.
- To hide or minimize who the actor is (especially in persuasive writing.)
- In generalizations, to avoid sexist language (in using the male pronoun) or using the word 'one' as the subject.
- When you want to place the emphasis at the end of your sentence.
- Just because it sounds better.
Here is an example of effective passive use:
Documents may have been shredded but not done so with the intent to hide evidence of potential wrongful conduct.
In the above example, if your client is the shredder of the documents, it is best to bury this information by omitting mention of the client as the actor. Placing emphasis on your client as the perpetrator of wrongdoing is generally not an effective defense strategy.
But again, use of the passive is the exception to the rule. If you want to bring home a point in the most clear and concise way possible, say it loudly with the active voice.