Indeed, I remember seeing a memo from the head of the Civil Aeronautics Board (that’ll date me). It read:

To: All CAB Employees From: The Director Re: The Passive Voice

The passive voice is used exclusively in the federal government . . . . [The memo continued and urged everyone to use only the active voice.]

In like manner, William Strunk Jr. and E.B. White favor the active voice: “Many a tame sentence of description can be made lively and emphatic by substituting a transitive in the active voice . . . .”¹ Even legal writing books cheer for the active: “More often than not, the passive is best avoided . . . .”²

We might observe the irony: writing a critique of the passive voice in the passive voice. But the fact remains: the passive has a very bad reputation.

In my classes on effective legal writing, I often ask the attorneys if their legal writing instructors in law school prohibited the use of the passive voice. A significant number of hands go up. Did they impose this restriction as an exercise, or did they believe that writers should never use the passive voice? Many hands vote for the “never use” alternative.

Which brings to mind another memory: In the faculty lounge at the University of Virginia, I heard a former law school dean exclaim: “I never use the passive voice. I always use the active.”

So should legal writers avoid the passive at all costs? No. And patent lawyers will find many situations where the passive just does a better job.

Let’s Review Voice

In many of my courses, I use the statement of facts in the famous Palsgraf case—near and dear to the hearts of every first-year law student. They go like this:

Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact, it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.³

I then ask the class to identify any passive-voice constructions. Usually someone will say, “package was dislodged.” Someone else might say, “was covered by a newspaper.” Both correct.

But in virtually every class I have ever taught, someone will suggest “was standing” as a passive-voice construction. No, I reply. For two reasons: the verb stand is intransitive, and standing is a present participle, not a past participle.

Scores of brows inevitably wrinkle. Let’s unwrinkle them.

Transitive and Intransitive Verbs

The English language has two types of main verbs: action and no-action. The no-action verbs comprise the verb to be and other linking verbs (we have about 20 in the language). Let’s not worry about them and focus instead on action verbs.

Every action verb is either transitive or intransitive (and sometimes both). A transitive verb can attach directly to a noun without the help of any other word. Thus, John hit the ball. The verb hit is transitive. The word ball is the direct object of hit. You can identify any verb as transitive by uttering the verb and then uttering a noun: drink beer, exclude evidence, file application, deny motion, dismiss case, and thousands more.

Here’s another trick. Just answer this question: Can I [verb] something? Can I [verb] somebody? If the answer to either is “yes,” then the verb is transitive. Can I hit something? Can I drink something? Can I exclude something? Can I file something? You get the picture. All those verbs are transitive.

But what about the verb proceed? Can you verb-noun? Can you proceed the investigation? Can you proceed something? Can you proceed somebody? No. The verb proceed is purely intransitive. It cannot attach directly to a noun. It needs the help of a preposition: proceed with the investigation.

All of the body-motion or body-location verbs are intransitive: walk, run, skip, stand, tiptoe, and scads of others. Some, of course, can be transitive as well. Can you run something? Yes. You can run the law firm or run drugs or run the equipment. Those usages of run are transitive.

Lie vs. Lay

You can use this knowledge about transitive and intransitive verbs to avoid misusing words. Virtually everyone confuses lie and lay. But once you realize that lie is a body-location verb, you then know it is intransitive. Can you lie something? No. But can you lay something? Yes. You can lay a child on the bed for a nap, and when you do, the child lies there.

Meaning of the Word Transitive

So what does the word transitive mean? The prefix trans‑ appears with many words borrowed from Latin: transfix, transcend, and others. For our purposes, the prefix means “across.” The word transitive comes from the Latin transitivus (that may pass over) and from transire (go or cross over).

So a transitive verb in the active voice has a grammatical subject (John). The verb then takes the action from John and carries it across to the direct object ball.

John hit the ball.

John in that sentence is the agent of the activity of hitting; John is the actor; John is the do-or, the hit-or. The ball, on the other hand, receives the activity of hitting; the ball is the recipient of the action; the ball is the do-ee, the hit-ee. As you can readily see, the grammatical subject of our sentence is very active in this sentence. Hence the name: active voice. The grammatical subject is active.

The ball was hit by John.

We can take any active-voice sentence and flip it around by using the passive voice. Our subject John trots to the tail end of the sentence. The ball—the direct object in the active-voice sentence—becomes the grammatical subject in the passive voice. The subject here is the recipient of the action, the subject is the do-ee or the hit-ee, the subject is passive. Hence the name: passive voice. The grammatical subject is passive.

Three Features of the Passive Voice

Let’s review our two sentences:

Active: John hit the ball. Passive: The ball was hit by John.

Notice in the active-voice sentence that the action flows in the same direction as the words when they hit the paper: left to right. John steps up to the plate (we now know the actor), he swings (we now know the action), and he hits the ball (we now know the result).

But in the passive voice, everything is backward: the action flows right to left. We see the grammatical subject ball (we know the result), we see the action was hit, and finally we see whodunit, John, the actor.

By looking at the sentences, we can deduce three features of the passive voice:

1. The actor trots to the end of the sentence. 2. The actor can be omitted.

Look what we can do with the passive: The ball was hit. We can obliterate John. We simply leave him out. We can’t do that in the active voice without obviously covering up: Somebody hit the ball.

3. It takes more words to say the same thing.

In the active voice, we needed four words; in the passive, six. As a rule, you’ll need more words to construct passive-voice sentences.

When we visit the situations calling for the use of the passive voice, we’ll see that the first two features help us write better sentences in the passive voice.

Forming the Passive Voice

Only transitive verbs have voice. Intransitive verbs do not. They cannot have direct objects, which can then be switched to subjects in the passive voice. To form the passive voice of any transitive verb, take any form of the verb to be and add the past participle of the transitive verb.

Groan. Past participles? I left them behind in high school. Fear not. Identifying the past participle of any verb is really quite easy, for it also shows up in the present-perfect tense. We form that structure by conjugating the helping verb have and adding the past participle. Thus:

I have developed. The past participle of develop is developed.

I have created. The past participle of create is created.

I have fixed. The past participle of fix is fixed.

As you can see, the past participles of many verbs are – ed verbs. Just add the suffix – ed and you’ve formed the past participle.⁴ And for these verbs, the – ed form also serves as the past tense:

Yesterday I developed. The past tense of develop is developed.

Yesterday I created. The past tense of create is created.

Yesterday I fixed. The past tense of fix is fixed.

But about 200 verbs in the English language are irregular verbs. They are irregular because their past tense and their past participles are not the same word. And we don’t form them by adding – ed. You can identify the past participle of any verb by completing this sentence: I have [verb]. You’ll be surprised that you know the past participles of both regular and irregular verbs. Let’s try the “I have” approach with some irregular verbs:

I have drunk the soda. The past participle of drink is drunk.

I have seen the movie. The past participle of see is seen.

I have flown to Bermuda. The past participle of fly is flown.

Now look at the different words used to form the past tense of these verbs:

Yesterday I drank the soda. The past tense of drink is drank.

Yesterday I saw the movie. The past tense of see is saw.

Yesterday I flew to Bermuda. The past tense of fly is flew.

So, to form the passive voice, take any form of the verb to be and add the past participle. We can even create passive-like phrases: The issue to be determined . . .

To form the various tenses in the passive voice, we simply conjugate the verb to be and add the past participle of the transitive verb. The table shows a complete conjugation of the verb to show. The active voice appears on the left; the passive, on the right. Notice that everything you say in the active can be said in the passive. Well, almost. As you can see in the table, the passive doesn’t appear in a future-progressive tense. If it did, it would read: The movie will be being shown. Neither does the passive appear in any perfect progressives.

Plaintiff was standing on a platform . . .

Now you can see why this sentence in Palsgraf does not appear in the passive voice. The verb stand as used in the passage is distinctly intransitive. Intransitive verbs have no voice. Further, the word standing is a present participle, not a past participle, which must appear in every passive construction.

When the Passive Voice Is Preferred

So what about the conventional wisdom: avoid the passive, use the active. Always? Passives should never show up in our writing? No.

In at least seven situations, the passive voice produces more elegant sentences and achieves objectives of the writer. These seven derive from the first two features of the passive voice: (1) you can put the actor at the end of the sentence, and (2) you can omit the actor altogether.

When the Identity of the Actor Is the “Punch” of the Sentence and You Want to Place It at the End

All style manuals agree that the important point should appear at the end of the sentence. Well, suppose that the important point is the identity of the actor. The only way in the English language to make an actor appear at the end of a sentence is to use the passive voice.

Active: The president of the United States hid the tapes.

Passive: The tapes were hidden by the president of the United States.

Note: This first situation derives from the “actor at end” feature of the passive voice. All remaining situations relate to the “actor omitted” feature.

When You Are Generalizing and You Want to Avoid Using the Word One as the Substitute for Too Many Nouns

You won’t impress a lot of people or make a lot of friends if you use one as the subject of too many sentences. Don’t misunderstand; I don’t suggest that you abolish the use of one as the substitute for generalized actors. But if one uses too many, one might find that one’s friends will look askance.

Active: Here are seven situations where one prefers the passive voice.

Passive: Here are seven situations where the passive voice is preferred.

When the Identity of the Actor Is Irrelevant and You Simply Want to Omit It

This situation shows up frequently in scientific writing. Often your readers don’t care a whit about the identity of the actor. They might read “the solution is heated to a temperature of 120 degrees” and not wonder at all about who exactly turned on the Bunsen burner. Legal writers confront the same situation. If they’re writing about a federal statute, they don’t need to reveal that Congress enacted it. Take a look:

Active: Congress enacted the Civil Rights Act in 1964.

Passive: The Civil Rights Act was enacted in 1964.

When the Identity of the Actor Is Unknown

Often you have no clue who the actor was. The active-voice statement below is not very mysterious.

Active: Somebody mysteriously destroyed the files. Passive: The files were mysteriously destroyed.

When You Want to Hide the Identity of the Actor

And we come to the politician’s favorite. You know whodunit but you ain’t sayin’: Mistakes were made!

Active: I regret to inform you that I misplaced your file.

Passive: I regret to inform you that your file has been misplaced.

When You Want to Avoid Sexist Writing and Also Want to Avoid Those Horrible S(he), He/She, Him/Her, and His/Hers

When you include a generic actor in your sentences and later want to use a pronoun to refer to him or her, you can find yourself in a quagmire, as shown in the active-voice example below. To solve the problem, I try to make generic actors plural. Then I can refer to them with the third-person plural pronouns they, their, and them. Do not, however, use these plural pronouns to refer back to singular antecedents. Though this usage is becoming more acceptable in England, discerning readers in America would regard it as a grammatical mistake.

Active: An applicant for employment must file his/her application with the personnel office. He/she should include his/her complete educational background.

Passive: An application must be filed with the personnel office. A complete educational background should be included.

When the Recipient of the Action Is the Subject Matter of the Rest of the Paragraph

Finally, when you’re writing about the recipient of the action (as I am now writing about “recipients”), the recipient should be kept as the subject of the sentence. See?

Active: Smith, because he knows the workings of the department, has lasted for more than a year. The president, nevertheless, probably will ask him to resign.

Passive: Smith, because he knows the workings of the department, has lasted for more than a year. Nevertheless, he will probably be asked to resign.

The Passive Voice in Scientific Writing

I urge everyone to visit Duke University’s Graduate School Scientific Writing Resource.⁵ There you’ll find a statement of the problem:

Few topics engender such heated debates as that of active vs. passive voice. This argument is relevant to writing in general, but I think it’s particularly so to scientific writing. Some writers speak out in vehement opposition to passive voice[;] others claim it should be used liberally. What is one to do?

And a statement of the solution:

As usual, I think the right answer lies somewhere between the extremes. It’s true that active voice is generally shorter and clearer, but passive voice is also useful. If I sound like I’m generally on the side of preferring active voice where possible, it’s because I believe many scientists habitually abuse the passive voice. The problem isn’t with the passive voice per se, it’s that scientists don’t use it well.⁶

The emphatic statement comports with my experience. Those with scientific and engineering backgrounds have spent four, and sometimes many more, years reading scientific textbooks. The material there appears almost exclusively in passive-voice sentences crammed with nominalizations and other wordy expressions. Who can come out of that educational experience with anything but a rather severe passive-voice habit? So when scientists and engineers enter law school, they feel comfortable with the passive voice and its thick, hard-to-read style.

And what do they find in law school? Traditional legalese, which favors passive, nouny sentences replete with uncountable constructions of the verb to be. Passages like this (passives in italics, constructions of the verb to be in bold italics):

Anticipation, under § 102(b), requires that each and every element of the claimed invention be disclosed in a prior art reference published one year before the patent application was filed in the United States. However, an anticipatory reference need not duplicate word-for-word what is in the claims. Anticipation can occur when a claimed limitation is “inherent” or otherwise implicit in the relevant reference. To rely upon inherency, however, the burden is on the party attacking the patent to prove that the inherent element necessarily is present in the prior art reference and that one of ordinary skill in the art would recognize that it is present. One does not prove that an element is inherent in a prior art reference if the element may be present or may result from a process described in the reference.

Thus, the scientists now have law degrees. They must now write responses to USPTO office actions. If they litigate, they must write motions for summary judgment. They will soon realize that the traditional scientific and legal writing style doesn’t tell a very good story. If someone intervenes and teaches them about voice and nominalization and the be plague, they can then write the same passage without any passives or constructions of the verb to be:

The doctrine of anticipation under § 102(b) defeats patentability if each element of the claimed invention appears in a prior-art reference published one year before the application’s U.S. filing date. But an anticipatory reference need not parrot the claim language word for word. If a claimed limitation “inherently” or implicitly appears in the reference, § 102(b) will prevent patentability. To rely on inherency, however, the party attacking the patent must prove that the inherent element necessarily appears in the prior-art reference and that one of ordinary skill in the art would recognize it. Attacking parties will fail to meet this burden if they merely prove that the inherent element might exist or might result from a process described in the reference.

Abolish the Passive?

We need to restate the conventional wisdom. Instead of abolishing the passive voice, writers should use it sparingly, perhaps to achieve some of the objectives described above. But if they have a passive-voice habit, they should strive to give it up totally. Just as an exercise. Or better yet, they should try to write at length without using a single construction of the verb to be. That’ll prevent all passives and help reduce the thick-sounding passive and noun forms that stuff up traditional legal and scientific writing.

Endnotes

1. William Strunk Jr. & E.B. White, The Elements of Style 18 (4th ed. 2000).

2. Richard K. Neumann Jr., Legal Reasoning and Legal Writing: Structure, Strategy and Style 70 (Little Brown & Co. 1990).

3. Palsgraf v. Long Island R.R., 162 N.E. 99, 99 (N.Y. 1928).

4. I should point out that some regular verbs don’t use the – ed suffix to form their past tense and past participles. Some use – t, such as built and felt.

5. Available at https://cgi.duke.edu/web/sciwriting/index.php?action=passive_voice (last visited June 5, 2016).

6. Id. (emphasis added).