Should One Avoid Passive Voice in Legal Writing?

Legal writing requires precision, clarity, and the careful selection of language. A common area of difficulty is the use of passive voice. While sound legal writers generally avoid passive constructions in favor of the active voice, there are a few instances (very few) when passive voice may be appropriate.  This article explores the intricacies of using passive voice in legal writing to enhance your drafting skills and ensure your documents are clear and effective.

We will cover the following key aspects:

• Understanding Passive Voice and how it applies in legal writing
• Common Mistakes in Legal Writing: Active vs Passive Voice
• Tips for Improving Clarity and Precision in Legal Documents
• Legal Writing Best Practices for Effective Communication
• Conclusion: Mastering Passive Voice in Legal Writing for Better Outcomes

Mastering the balance between passive and active voice can make your legal writing clearer. It’s not just about following rules; it’s about making strategic choices to enhance the readability and persuasiveness of your legal documents. Let’s delve into practical guidelines, tips, and examples to help you navigate this essential aspect of legal writing.

Understanding Passive Voice in Legal Writing

Passive voice fosters indirection and imprecision, placing the action before the actor in sentences. This structure can obscure who is acting and weaken the potency of legal arguments. In the passive voice, the subject is acted upon by the verb, which can muddle the clarity and authority of legal documents.

Here’s an illustrative example:

Active Voice: The jury convicted John Jones of manslaughter.

Passive Voice: John Jones was convicted of manslaughter by the jury.

The active voice makes it clearer who is performing the action and maintains the flow of the sentence. However, although this author does not recommend it, some legal writers resort to passive voice for various reasons:

• Emphasizing the Action or Result: In instances where the outcome is more crucial than who performed the action, passive voice can be beneficial. For example, “The contract was signed” emphasizes the action of signing rather than who signed it.
• Unknown Actor or Actor at Fault: When the actor is unknown, passive voice helps to present the information unambiguously. For example, “The document was stolen” is preferable when the identity of the thief is unknown.  This can also be true when counsel is representing a client and does not wish to draw attention to the client’s liability.
• Legal Formality: Legal writing often favors a formal tone to enhance gravity and seriousness. Passive voice can contribute to this formality, such as in procedural or regulatory texts: “Evidence was presented” rather than specifying who presented it.

That said, an overreliance on passive voice can result in convoluted and less engaging legal documents. Active voice, conversely, aligns better with clarity and precision, indispensable traits in legal writing. Legal professionals should generally prefer active voice to create powerful, direct, and unambiguous sentences.  As a practical matter, how does a legal writer recognize passive voice?  If you can add “by zombies” to your sentence, it is likely passive voice. “The defendant was convicted.”  By whom? “The defendant was convicted by zombies” renders the sentence one in passive voice.

Common Mistakes in Legal Writing: Active vs Passive Voice

Distinguishing between active and passive voice is crucial for legal practitioners aiming to deliver clear and compelling arguments. Yet, many make common mistakes when choosing between the two, often compromising the clarity and precision of their legal documents. Below are some frequent errors and tips to avoid them:

Overusing Passive Voice

Error: Many legal writers overuse passive language, burdening sentences with unnecessary wordiness and reducing clarity. For example:

• Incorrect: The report was reviewed by the attorney, and errors were found by her.
• Correct: The attorney reviewed the report and found errors.

Solution: Opt for active voice to make your sentences more direct and engaging. Reserve passive voice for the specific contexts where it is most appropriate, such as when the actor is unknown or irrelevant.

Misidentifying the Subject and Object

Error: In passive constructions, the drafter misidentifies the subject and object, leading to confusion about who is performing the action. For example:

• Incorrect: The legal brief was written, and it was submitted to the court by John.
• Correct: John wrote and submitted the brief to the court.

Solution: Clearly identify the actor (subject) and the action they are performing to maintain precision. Active voice typically helps in making these identifications clear.

Weakening Legal Arguments

Error: Using passive voice can weaken the persuasiveness of legal arguments by making them appear less forceful. For example:

• Incorrect: It was determined that the contract was breached.
• Correct: The court determined that the defendant breached the contract.

Solution: Prefer active voice to make your arguments more forceful and definitive. This clarity enhances the impact of your legal reasoning and makes it easier for the reader to follow.

Unnecessary Ambiguity

Error: Passive voice can introduce ambiguity, leaving readers uncertain about key details. For example:

• Incorrect: Errors were made in the documentation.
• Correct: The team made errors in the documentation.

Solution: Be explicit about who is responsible for actions to avoid ambiguity. Active voice clarifies responsibility and improves the document’s overall clarity.

Long and Complicated Sentences

Error: Passive constructions often result in unnecessarily long and convoluted sentences, which are harder to read. For example:

• Incorrect: The analysis of the case was conducted by the legal team over a period of several weeks, during which numerous issues were identified and addressed.
• Correct: The legal team analyzed the case for several weeks, identifying and addressing numerous issues.

Solution: Break down long passive sentences into more concise and active statements. This not only improves readability but also ensures that each part of the sentence is clear and focused.

Neglecting the Reader’s Perspective

Error: Using passive voice without considering the reader’s need for clear and concise information undermines the effectiveness of legal writing. For example:

• Incorrect: An amendment was proposed to the statute.
• Correct: The legislator proposed an amendment to the statute.

Solution: Always consider the reader’s perspective when drafting legal documents. Active voice often aligns better with the reader’s need for clear, direct, and easily digestible information.

By recognizing these common mistakes and actively choosing between active and passive voice based on the context, legal writers can significantly enhance the clarity and precision of their documents. Striking the right balance and understanding when to use each voice type is crucial for effective legal communication.

Tips for Improving Clarity and Precision in Legal Documents

Legal documents must be clear and precise to ensure that all readers easily understand their intended meaning. Here are some practical tips to enhance clarity and precision in your legal writing:

1. Use Active Voice When Possible

Active voice generally makes sentences clearer and more direct. While passive language has its place in legal writing, active voice is often more precise. For example:

• Active Voice: The attorney filed the motion.
• Passive Voice: The motion was filed by the attorney.

2. Be Concise

Eliminate unnecessary words and jargon. Every word should serve a purpose. Legal writing should be succinct without losing any essential detail:

• Wordy: Due to the fact that the defendant did not appear, the court granted the motion.
• Concise: Because the defendant did not appear, the court granted the motion.

3. Structure Your Paragraphs with IRAC/CRAC

Paragraphs should follow a logical structure, such as IRAC (Issue, Rule, Analysis, Conclusion) or CRAC (Conclusion, Rule, Analysis, Conclusion). This helps ensure that each paragraph is focused and coherent:

Example:

• Conclusion: The jury is likely to find the defendant guilty of fraud because she provided false financial statements.
• Rule: According to the law, fraud requires proof of intentional misrepresentation.
• Analysis: The defendant knowingly provided false financial statements to her accountant.
• Conclusion: Therefore, the jury is likely to convict the defendant of fraud.

4. Use Plain English

Avoid legalese and specialized jargon whenever possible. Aim for language that is easily understood by non-specialists:

• Legalese: The affiant, being duly sworn, deposes and says . . .
• Plain English: The person making this statement, after being sworn in, says . . .

5. Define Terms Clearly

When complex terminology or legal concepts are necessary, define them clearly to avoid misunderstandings:

• Unclear: The defendant violated the clauses.
• Clear: The defendant violated the non-compete and confidentiality clauses of the contract.

6. Use Consistent Terminology

Consistency in terminology helps avoid confusion. Once you define a term, use it consistently throughout the document:

• Inconsistent: The plaintiff claimed damages. The complainant then asked for compensation.
• Consistent: The plaintiff claimed damages. The plaintiff then asked for compensation.

7. Employ Visual Aids and Subheadings

Use subheadings, bullet points, and numbered lists to break up long sections of text and make documents more navigable:

• Define your key points under subheadings.
• Use bullet points or numbered lists for lists or steps.
• Include charts or tables where they help clarify complex information.

8. Proofread Thoroughly

Errors can undermine the clarity and professionalism of legal documents. Always proofread for grammar, spelling, and punctuation errors:

• Spellcheck: Use automated spellcheck tools, but do not rely on them exclusively.
• Peer Review: Have a colleague review your document.
• Read Aloud: Reading the document aloud can help you catch mistakes you might overlook when reading silently.

9. Avoid Redundancies

Eliminate redundant words and phrases that make your writing less precise and more cumbersome:

• Redundant: The attorney general will re-examine again the case next week.
• Concise: The attorney general will re-examine the case next week.

10. Stay Objective

Avoid emotional language and personal opinions. Legal writing should be factual and impartial to maintain credibility:

• Emotional: The defendant tragically neglected their responsibilities.
• Objective: The defendant failed to fulfill her contractual obligations.

By following these tips and incorporating them into your legal writing practice, you can significantly improve the clarity and precision of your documents. Remember, effective legal writing is clear, concise, and tailored to its audience.

Legal Writing Best Practices for Effective Communication

Effective legal communication is vital to the practice of law. Implementing best practices in legal writing ensures your documents are clear, persuasive, and professional. Here are some key strategies to help you achieve effective communication in your legal writing:

1. Prioritize Clarity

Clarity should be at the forefront of your legal writing. Avoid convoluted sentences and jargon that may confuse the reader. Stick to straightforward language that conveys your message clearly and succinctly.

• Example: Instead of saying, “The defendant hereinabove referenced did not fulfill the aforementioned contractual obligations,” opt for, “The defendant did not fulfill the contract obligations.”

2. Be Concise

Avoid unnecessary words and redundant phrases. Every word in your document should serve a specific purpose. Conciseness enhances readability and prevents misinterpretation.

• Example: Instead of “It is the opinion of this writer that,” simply write, “I believe.”

3. Organize Logically

Use a logical structure to present your arguments and information. Subheadings, bullet points, and numbered lists make your documents easier to navigate and comprehend.

• Example: Utilize CRAC (Conclusion, Rule, Analysis, Conclusion) or IRAC (Issue, Rule, Analysis, Conclusion) to structure your paragraphs and arguments.

4. Emphasize Key Points

Highlight important information to ensure it stands out. You can use bold or italicized text, but use these tools sparingly to avoid overwhelming the reader.

• Example: “The court ruled specifically that the defendant was negligent.”

5. Use Plain English

Avoid legalese and archaic language. Plain English makes your writing more accessible, which is especially important if your work is intended for a broader audience.

• Legalese: “The aforementioned party of the first part.”
• Plain English: “The party.”

6. Focus on the Reader

Keep your audience in mind. Your writing should be tailored to the needs and expectations of your reader, whether they are a judge, client, or colleague.

• Example: Provide necessary background information and avoid assuming the reader knows specific details only familiar to specialists.

7. Proofread and Edit

Review your document multiple times to catch errors. Grammar, spelling, and punctuation mistakes can undermine the credibility of your document. Consider peer reviews and obtain feedback from colleagues.

• Tip: Read your document aloud to catch awkward phrasing and errors you might miss during silent reading.

8. Be Precise

Precision is paramount in legal writing. Ambiguity can lead to misinterpretations and legal vulnerabilities. Ensure your language is exact and unambiguous.

• Example: Instead of “soon,” use “within 10 days.”

9. Incorporate Active Voice

While passive voice has its place, active voice generally makes your writing more direct and vibrant. It clearly identifies who is performing the action, enhancing the reader’s understanding.

• Passive Voice: “The motion was denied by the judge.”
• Active Voice: “The judge denied the motion.”

10. Enhance Readability with Visual Aids

Use tables, charts, and infographics to break up text and present complex information more visually. This aids in quick comprehension and retention of information.

• Tip: Ensure visual aids are clear and directly related to the text to avoid distracting the reader.

By adhering to these best practices, you can ensure that your legal writing is not only effective but also professional and persuasive. Remember, the goal of legal writing is to convey your arguments clearly and compellingly to achieve your desired legal outcomes.

Conclusion: Mastering Passive Voice for More Effective Outcomes

Effectively mastering the use of passive voice is crucial for clarity, precision, and effective communication. While active voice tends to be the default choice for its directness and vigor, understanding when and how to use passive voice in legal writing strategically can enhance your legal writing. Below are the key takeaways for mastering passive voice for better legal outcomes:

Recognize the Role of Passive Voice

Understanding the unique benefits of passive voice is the first step. Passive voice can be useful when the actor is unknown or irrelevant, to emphasize the action over the actor, or to maintain a formal and objective tone. (That said, this author recommends a virtual ban on using passive voice.) For example:

• Unknown Actor (or Actor Has Liability): The document was misplaced.
• Emphasis on Action: The contract was breached.
• Formality: The decision was rendered by the court.

Avoid Common Mistakes

Many fall into the trap of overusing passive voice, resulting in verbose and ambiguous writing. Learn to balance active and passive voice to avoid common mistakes such as:

• Overuse leading to convoluted sentences
• Failing to identify the subject and object properly
• Creating unnecessary ambiguity and weakening legal arguments

Improve Clarity and Precision

Maintaining clarity and precision is key in becoming a legal writing expert. Use active voice sentences as much as possible to make your sentences more direct and easier to understand. Incorporate passive voice selectively to meet specific legal requirements or rhetorical goals. Always aim for concise and straightforward language.

Implement Best Practices

Adopting best practices in legal writing enhances your communication skills. These include using plain English, emphasizing key points, structuring paragraphs logically, and thorough proofreading. These strategies ensure that your legal documents are not only clear but also professional and persuasive.  Consider taking our Course, Legal Writing Launch, to focus upon and employ these best practices in legal writing.

Final Thoughts

Mastering the use of active (rather than passive) voice in legal writing may not happen overnight. It requires a conscious effort to understand its mechanics and applications, along with continuous practice. By following best practices in legal drafting, you will produce documents that are precise, clear, and effective.

Remember, the ultimate goal is to enhance the readability and persuasiveness of your legal writing, thereby ensuring better legal outcomes for your clients and stakeholders. Consistently applying these principles will result in refined legal writing skills that serve you well throughout your career.