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Debunking Several Myths About the Passive Voice in Legal Writing

Any law student who has taken a legal writing course has probably heard, repeatedly, that the passive voice is bad. Evil. To be avoided at all costs. In most cases I would agree this is true, and that vigorously purging the passive voice from your writing makes it clearer and easier to read.

This post on the Legal Writing Prof Blog directs us to a good primer put out by the University of North Carolina Writing Center that debunks several myths about the passive voice, and also lays out at least three instances in which writers should feel free to use it.

The passive voice "myths" include:

  • Use of the passive voice constitutes a grammatical error: False, it is simply a stylistic issue related to clarity.
  • If something is in the first person, it is in the active voice: False, e.g., "I was hit by the dodgeball."
  • Grammar checkers will catch passive voice: False, grammar checkers typically catch only a fraction of passive voice usage.

The article also presents circumstances in which the passive voice is actually the best choice, including:

  • To emphasize an object. For example, in the passive voice example "100 votes are required to pass the bill," the emphasis is on the number of votes required. As the article explains, "an active version of the sentence ('The bill requires 100 votes to pass') would put the emphasis on the bill, which may be less dramatic.
  • To de-emphasize an unknown subject or actor, e.g., "Over 120 different contaminants have been dumped into the river."
  • If the reader doesn't need to know who is responsible for the action. For example, "Baby Sophia was delivered at 3:30 a.m. yesterday" works because the reader does not likely care that it was Dr. Jones who delivered Sophia.

I'm going to try to add all of this to my own practice of using the passive voice, which before today was simply, "don't do it!"

Posted by Bruce Carton on October 26, 2009 at 10:53 AM | Permalink | Comments (3)

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