Using the Passive Voice on Appeal

English instructors ranging from Struck and White to my grade school teachers in Ninety Six, South Carolina tell us to use the active voice instead of the passive. But even Strunk and White warns against discarding the passive voice entirely.

Professor Emeritus George D. Gophen made this point in the most recent edition of the ABA’s Litigation Journal: “Why the Passive Voice Should be Used and Appreciated — Not Avoided,” 40 Litigation Journal No. 2 (Winter 2014). He advocates the passive to:

  • lead with the protagonist
  • focus on the object or recipient of the action
  • stress the sentence’s other elements
  • hide the actor

On point one, Gophen explains that brief writers need to decide whose story we are telling. To use the Professor’s example, we say ” Jack loves Jill” if we are telling Jack’s story. But if Jill is the protaganist, we should say “Jill is loved by Jack.” Putting Jill first, when the story is hers, signals that the story is hers.

I often use the passive this way. My practice is normally devoted to representing tort victims on appeal. To tell their story, I’ll usually say “Plaintiff X was hurt by Defendant Y” and not “Defendant Y hurt Plaintiff X.” The plaintiff is the lead because the story is not about the defendant. The story is about the hurt plaintiff. 

Gophen’s next example requires us to decide what is important within the sentence because the importance may come from what was done and not who did it. We can say, “The notice of appeal was timely filed” without saying who filed it. It should not matter who filed it, as long as the filing occurred and was timely.

Professor Gophen’s next point about stress positions is his most intriguing. A theme throughout his articles for the Litigation Journal is that a reader’s attention is drawn to the words at the end of the sentence or other full stop. So put the most important words next to the period. Use the passive if it is the best way to end the sentence strongly. 

Lastly, the passive hides the actor. If your client was the at-fault driver, the passive voice tones it down or makes it more abstract. “Mistakes were made,” the saying goes.

Richard C. Wydick similarly advocates the passive to connect or feather sentences. Tip 30 in Bryan A. Garner’s The Winning Brief likewise prefers the passive to avoid sexist language, to generalize, and when the passive voice simply sounds better.

Yet Garner cautions that professional editors find that writers use the passive voice properly only 15-20% of the time. So presume that the passive is guilty until proven innocent.

Oh, and how do you spot the passive voice? Here is a way –

Do you intentionally use the passive voice in your legal writing? When? Please leave a reply.  

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