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Writing Clear and Effective Legal Prose

By George D. Gopen

Our English teachers taught us to avoid the passive. They said it was weaker and more cumbersome than the more energetic, more compact active voice. That was bad advice. Very bad advice.

 

Lawyers cannot write sophisticated, powerful prose without a skillful use of the passive voice. I could offer you a theological proof: God would not have created the passive had it no use. Or perhaps you might prefer the Darwinian argument: The passive could not have survived unless it was fittest for something. But I prefer this circular reasoning: The passive is better than the active in all cases in which the passive does a better job than the active. It only remains to learn what those cases are.

Since grammar is often left untaught, I had better demonstrate the distinction between active and passive. In the active voice, the grammatical subject of the sentence is the agent (the doer) of the action:

Jack loves Jill.

Jack, the subject, does the loving.

To change this to passive, first we make the object ("Jill") into the subject. Then we replace the verb ("love") with a form of the verb "to be"—in this case "is"—plus a verbal adjective (a participle) made out of the previous verb—in this case "loved."

Jill is loved by Jack.

In the passive, the subject is the one acted upon.

Readers expect—even assume—that a clause is the story of whoever or whatever shows up first, as the grammatical subject.

What does the passive accomplish for us? It moves the furniture around. It is the feng shui of grammar. Why is that important for us? Readers take most of their clues for interpretation not from word choice but from word placement—from structural location. Where a word appears controls most of what the reader will do with it. When the only way to get the right word into the right place is to use the passive, then we must thank God, or Darwin, or both, for its continued existence.

Here are the five most important ways in which the passive allows us to communicate far better than the active.

 

1. Whose Story Is This?

"Jack loves Jill." According to most readers, this is Jack's story. "Jill is loved by Jack." According to most, this is Jill's story.

Readers expect—even assume—that a clause is the story of whoever or whatever shows up first, as the grammatical subject.

When all we have is Jack, Jill and their passion, this may not seem a weighty concern; but when legal sentences refer to more information than this, it is another matter altogether. Consider the following set of sentences:

(a) Smith had notified Jones on the morning of April 7 concerning the lost shipment.

(b) On the morning of April 7, Jones had been informed of the lost shipment by Smith.

(c) The lost shipment had been disclosed by Smith to Jones on the morning of April 7.

All three are "correct" and informative sentences; but they "mean" differently. To choose between them, you must use not your ear; you must use your eye and your mind. If you are trying to inform us what Smith did, then your best choice here is sentence (a). If it is Jones's story you wish to tell, choose (b). If the story is to focus for the moment on the lost shipment, (c) will do the best job. Smith does the action here. To tell Smith's story, use the active, which gets Smith up front. Both Jones and the lost shipment are not doers; they get done to. The easiest way to get them up front is to use the passive. Getting the right "whose story" into the "whose story" position is essential for clear legal prose. Thank goodness we have the passive.

 

2. The Passive Is a More Effective Way than the Active to Indicate Passivity

Because we have been so conditioned to avoid the passive, we tend to disregard the clear logic of this second principle. If we are writing the statement of facts for a plaintiff in a torts case, for example, we should have a section in which the plaintiff is constantly up front as whose story it is, with many of the verbs being passive. The plaintiff was done unto by the nasty defendant.

But in the section that describes all the terrible things the defendant did, the defendant should constantly be up front, with active verbs showing all the nasty deeds the defendant actively did. (To understand better how the verb tells readers what is going on in a sentence, see the first article in this series, "Where's the Beef?" in the April/May 2006 Law Practice.)

 

3. Sophisticated Weakness, Expressed by the Passive

We have all been taught that we should avoid the passive because it is "weak"; but even weakness has its uses.

A sentence usually begins with the subject ("whose story?"), followed by the verb ("what's going on?"). The end of the sentence, the Stress position, tells us what in the sentence is to be considered most important. (For more on the Stress position, see the second article in this series, " Stress This  ," in the June 2006 issue.)

Whose story will be told by the next sentence? Consider the following paragraph:

A disease that progresses with few or no symptoms to indicate its gravity is an "insidious disease." Four of the most powerful insidious diseases are asbestosis, neoplasia, mesothelioma and bronchogenic carcinoma. These diseases are regularly contracted by asbestos insulation installers who have inhaled asbestos fibers over a period of many years.

"Insidious disease" occupies the Stress position in the first sentence, suggesting it is an important term. When it takes over the "whose story" position in the second sentence ("Four … diseases"), it establishes its own story line. When it again occupies the "whose story" position in the third sentence, we are solidly convinced to see the world of this prose from the continuing perspective of "these diseases." If the next sentence were to continue that story, telling us of further bad results they might cause, then we would want "these diseases" up front again, with another active verb:

These diseases regularly afflict asbestos installers, who….

Insidious diseases would actively be causing a series of woes.

But what if our original sentence ends the paragraph, and the first sentence of the next paragraph switches to the story of prolonged exposure to asbestos? We could subtly signal the reader there will be a shift in the "whose story" focus by weakening the verb—by making it passive. With the weakening of the "insidious disease" story, the reader will give a greater sense of "strength" to the material at the end of the sentence. The sentence would then read something like this:

These diseases are regularly contracted by asbestos insulation installers who have inhaled asbestos fibers over a period of many years.

Readers will not consciously notice the reason they feel so "comfortable," so continuously "at home" when the next paragraph begins, "Prolonged exposure over many years increases the probability of physiological damage…." But the job will have been done by this use of the passive, neatly, smoothly and, best of all, quietly.

 

4. Getting the Correct Information into the Stress Position

The single most important structural location in a sentence is the Stress position. That is where readers exert natural emphasis. Readers consider the material there as the sentence's highlight. Putting the most important information elsewhere is the single most prevalent problem in legal writing today. If the passive is the only or the easiest or the best way to get the important words to the end of the sentence, then again, thank goodness for the passive.

For an example, here is a set of facts:

  • Jones made false representations to Smith about a piece of property in which Smith had substantial interest.
  • As a result of those false representations, Smith ceded his interest in the property.

Let us say we have been telling Smith's story for several sentences, leading up to this crucial piece of information: Smith did this—Smith did that—Smith did this other thing. We now want to tell about his giving up his interest in the property; but more important to us than the ceding itself is the pointing the finger at the villainous Jones. Which of these sentences does the best job for us at this point?

(a) By false representations, Jones tricked Smith into ceding his interest in the property.

(b) Because Smith believed Jones, he ceded his interest in the property.

(c) These false representations by Jones led Smith to give up his interest in the property.

(d) Smith was convinced to cede his interest in the property by the false representations of Jones.

All four of these sentences are "correct" English. They all "sound" fine. We cannot pick a winner by using the ear. Once again, we have to use the eye and the mind. The first three are in the active; the fourth is in the passive. If we want to continue the long-standing story of Smith and wind up pointing the finger of accusation at Jones, then sentence (d), despite its passive construction, will do by far the best job. There is Smith in the "whose story" position and Jones in the Stress position. We could not have accomplished that without the passive. All the other sentences are good sentences; but they "mean" differently. They do not serve our present purpose as well.

 

5. Using the Passive to Get Rid of Agency

In English, there are two main ways of ridding a sentence of agency—of who did the action. One is nominalization—making the verb into a noun.

Here is an active sentence:

(a) We predicted a 4 percent rise in production.

"We" are the agent. To get rid of us, make the verb "predicted" into a noun:

(b) The prediction was for a 4 percent rise in production.

The only other way is to use the passive:

(c) A 4 percent rise in production was predicted.

When you wish to get rid of agency, I urge you to avoid nominalization and use instead the passive. By using the passive, you retain the announcement of the action in the verb. If you give the above sentence (b) to 12 readers, they will vary in their interpretations: Four will judge it to be a sentence about the action of "predicting"; four will say it is about the production "rising"; and four will swear that it is all about "producing." Give sentence (c) to the same 12 readers, and 11 or 12 will say it is about "predicting."

Thank goodness—or God, or Darwin—for the passive.

 

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