Guess what inevitably happens. Only about 30 percent get the answers right—far less than half the group will know that the passive voice has two essential elements: a be-verb and a past participle (e.g., was written or were filed). Be-verbs alone (such as is, are, was, and were) aren’t passive. You must have the past participle as well.
So The paper was written by Jill is in passive voice—but The paper is by Jill isn’t, weirdly enough. We still like the active Jill wrote the paper better in most contexts. By the way, my two quiz sentences are She had learned drafting in law school (not passive) and The doctrine is applicable (not passive—though typically inferior to The doctrine applies).
When I gave my quiz at a law firm in New York recently, several foreign lawyers were present—people who grew up in France, Italy, and Chile. They were astounded by their American colleagues’ lack of grammatical knowledge. One French lawyer (who got the questions right) assured me that every third-grader in France knows what passive voice is. Maybe that’s an exaggeration, but it’s no exaggeration to say that every legal writer should know what it is. If you don’t, you’re likely to impair your credibility.
And when it does arise—it will, believe me—you should be savvy enough to know that it isn’t always bad style at all. When the actor is unimportant, for example, the passive voice is perfect. Jane Doe was convicted on three counts of shoplifting is usually preferable to A judge and jury convicted Jane Doe on three counts of shoplifting.
Learning grammar may seem like a sterile activity. Who cares whether you can tell when which is a relative pronoun and when it’s an interrogative pronoun? Why should it matter whether you can distinguish the present-perfect tense from the pluperfect? We’re in the modern world, and you might think it’s antiquated silliness to fuss over the nominative versus the objective case of a pronoun. But acquiring a command of these distinctions will give you a clearer head and enhance your ability to communicate effectively. You won’t fully appreciate how much this is so until you’ve acquired it.
True, there’s some drudgery involved in learning grammar. But it isn’t nearly as bad as many seem to think. And in my experience, it’s best when self-taught, partly because it’s exceedingly hard to find a good course on the subject. My favorite book for the grammatical novice is Norman Lewis’s 30 Days to Better English (1991). At $5.99, it’s a bargain. The small investment will produce great returns.
Knowing Your Stuff
But why should you care about your grammar, much less read a book on the subject? My answer is fourfold. 1) Most of us grow up speaking a form of dialect, and if you know grammar, you’ll have more confidence that you’re speaking and writing standard American English. 2) Many people who are confident that they know grammatical rules are dead wrong: they’ve been fed misinformation about English grammar, and their writing therefore suffers. 3) Once you have a true command of language, you can focus more on what you’re trying to say rather than how you’re going to say it, so the substance of your message will be more satisfying. 4) Whether we know it or not—whether we like it or not—people judge us by how we wield words; when you manage your words skillfully, you have far greater opportunities in law and in any other professional realm. That’s the reality.
So how knowledgeable are you right now? Below is a test that I’ve devised with sample sentences drawn from entries in one of my books on grammar and usage, Garner’s Dictionary of Legal Usage (3d ed. 2011). In each sentence, try to choose the right answer, (a) or (b), based on strict grammatical standards. Then tally your results. Good luck!
If either of these findings [(a) is, or (b) are] negative, the regulation is constitutional.
Neither the interests of justice nor common sense [(a) lend, or (b) lends] any support to the decision to preserve the single sliver of the Commission’s lawmaking power.
Neither you nor I [(a) is, or (b) am] likely to change the world.
A number of scholastic dogmas [(a) has, or (b) have] arisen and obscured the real function of precedent in our legal reasoning.
Even if a group of members [(a) decides, or (b) decide] to challenge such an agreement, there is no guarantee that the government will provide time for a debate or the opportunity of a vote.
Please keep this matter confidential between you and [(a) I, or (b) me].
Bismarck Realty prepared [(a) prospectuses, or (b) prospecti] on the property.
Her testimony indicates that she had definite ideas about where and how these [(a) apparatuses, or (b) apparati] were to be used.
The Supreme Court recently explained this [(a) phenomena, or (b) phenomenon] in Powers v. Ohio.
Reasonable investors would have considered the devaluation of this goodwill an important [(a) criteria, or (b) criterion].
He [(a) had quickly gone, or (b) quickly had gone] to the scene of the crime.
She acknowledged that the defendant named other people, [(a) who, or (b) whom] he said were setting fires.
Ohio should go after the defendant or [(a) whomever, or (b) whoever] is responsible.
The cost of all prosecutions [(a) are, or (b) is] paid out of the fund provided by the locality in which the proceedings take place.
It can hardly be otherwise as long as justices or a court [(a) have, or (b) has] to deal with applications.
The success of these cooperative enterprises [(a) turns, or (b) turn] on how successfully the right is preserved.
Exception after exception [(a) has, or (b) have] whittled away the rule.
Marketing quotas [(a) not only embrace, or (b) embrace not only] all that may be sold without penalty but also what may be consumed on the premises.
The reason words are so important is [(a) that, or (b) because] they are the vehicle of thought.
All medical facilities will be equipped [(a) consistent, or (b) consistently] with these standards.
For example, you may [(a) cite, or (b) cite to] a federal wiretapping statute.
Grubbs is hardly a surprising decision when it is interpreted [(a) thusly, or (b) thus].
When Dr. Rowland made his will, he intended to cover [(a) he, or (b) him] and his wife if they were to die together in just such a calamity as in fact happened.
Are we really much smarter than [(a) them, or (b) they]?
Logic, as well as equity, [(a) dictate, or (b) dictates] this result.
Answers. All these examples are drawn from Garner’s Dictionary of Legal Usage (3d ed. 2011). If you wish to know the reasoning behind each answer, I have provided the relevant page numbers where each sentence is discussed in that book. 1. (a). See p. 309. 2. (b). See p. 602. 3. (b). See p. 602. 4. (b). See p. 874. 5. (a). See p. 875. 6. (b). See p. 417. 7. (a). See p. 724. 8. (a). See p. 66. 9. (b). See p. 673. 10. (b). See p. 237. 11. (a). See pp. 31–32. 12. (a). See p. 944. 13. (b). See p. 946. 14. (b). See p. 852. 15. (b). See p. 853. 16. (a). See p. 852. 17. (a). See p. 854. 18. (b). See p. 652. 19. (a). See p. 753. 20. (b). See p. 207. 21. (a). See p. 158. 22. (b). See p. 894. 23. (b). See p. 719. 24. (b). See p. 719. 25. (b). See p. 853. n