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Passive VoiceActive voice is distinguished from passive voice by the identity of the actor. As a general rule, active voice is preferred because it meets two of the most important requirements of legal writing: clarity and conciseness. Active voice is clearer because it focuses the reader's attention on the "doer of the action"; it is also more concise simply because it usually involves fewer words.
While any single use of the passive voice is not technically incorrect, the repeated use of passive voice produces a sluggish, ponderous text. However, there are a limited number of situations -- explained below -- where using passive voice is preferable. The good writer will actively seek to avoid the passive voice unless presented with a strong justification for its use.
1. As a general rule, use active subject-verb formulations.
Undesirable:A mistake was made by the lawyer, and a mistrial was declared by the judge.Better: The lawyer made a mistake, and the judge declared a mistrial.
Undesirable:The heinous murders were committed by the defendant.
Better: The defendant committed the heinous murders.
2. Use passive voice when intentionally trying to hide the identity of the actor. In the following example, the writer (defense counsel) prefers not to use the active voice in order to avoid focusing attention on the identity of the actor.
Acceptable:The body was removed from the crime scene.
3. Use passive voice if it produces greater emphasis on the main point of the sentence.
If use of the active voice diminishes the point of the sentence, one may use passive voice instead. In the following example, the writer achieves a greater emphasis on poor people -- rather than the legislature -- by using the passive voice.
Undesirable:The legislature should not crucify the poor on the cross of a balanced budget.Better: The poor should not be crucified on the cross of a balanced budget.
4. You may use passive voice with a multi-part subject. If the subject of the sentence is so long or complex that the reader will be long delayed in reaching the verb, then the writer may choose to place the verb before the subject. Either of the approaches below may be acceptable for a given audience. For example, a professional audience is less likely than a lay audience to be confused by the delay in reaching the verb.
Acceptable Active Formulation:The committee reports, the floor debates, the presidential statement, and the administrative agency's interpretive guidance mandate the statutory interpretation we have chosen.
Acceptable Passive Formulation:The statutory interpretation we have chosen is mandated by the committee reports, the floor debates, the presidential statement, and the administrative agency's interpretive guidance.
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