Legal Writing Syntax: Active vs. Passive Voice

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Can you actively identify the difference between an active or passive sentence construction? Or would you passively sit by if asked to do so?

Active Voice:

  • Active Voice Defined: The subject of the sentence performs the action (verb).
  • Typical Sentence Construction: An active sentence will usually follow a subject + verb + object construction: “The plaintiff (subject) filed (verb) suit (object).”
  • Usage: Active voice is preferred in legal writing because the sentence construction is usually more concise and who is doing what will be more clear. A few exceptions to this active-voice preference, however, are detailed below.

Passive Voice:

  • Passive Voice Defined: The subject of the sentence is acted upon by the verb. So the object of an active sentence becomes the subject of the passive sentence.
  • Typical Sentence Construction: A passive sentence will usually follow a subject + be + past participle + by + agent construction: “The bill (subject) was approved (be + past participle) by Congress (agent).”
  • How to Find the Passive Voice: You can find the passive voice by searching for two things: (1) a form of “to be” (“is,” “are,” “am,” “was,” “were,” “has been,” “have been,” “had been,” “will be,” “will have been,” “being”) and then (2) a past participle (the form of the verb you’d use after had, as in “had rejected”).

That said, don’t completely eradicate passive voice from your writing!

Reasons to Use Passive Voice:

(1) To Enhance Flow: “Questor Cecaj, who together with his wife is seeking asylum in the United States, was active in the Democratic Party of Albania at a time when the country was ruled by the Socialist Party.”

  • Why: The passive construction keeps “Albania” near “country.”

(2) When An Action—Not the Actor—is the Point of Emphasis: “In 1998, Cecaj—whom the immigration judge found wholly credible—was arrested following a political protest in which he had participated.”

  • Why: We don’t care who arrested him, the point is that he was arrested for engaging in a political protest.

(3) To keep the subject consistent throughout a sentence: “He was detained for six days and during that period was beaten by masked police with rubber truncheons and also kicked, suffering injuries that required his hospitalization.”

  • Why: Keeping the focus on the actions done to the subject (Cecaj) is clearer for the reader and flows better.

Rule (Active or Passive Voice): Use active voice unless a passive-voice construction (1) enhances flow; (2) focuses the reader on the main point of the sentence; or (3) makes your writing clearer by keeping the subject consistent.

Now if you’re ready for some active learning, here are a few practice problems!

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1. What’s the best way to describe the underlined portion of the following sentence? The ancients interpreted flashing streaks of light in the nighttime sky as falling stars, and this name is still used by many people in referring to such phenomenon.

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2. Which rewrite of the underlined portion in the sentence below is correct? As the government’s failed enforcement action against the manufacturers of adulterated orange juice makes clear, favorable results can be obtained by regulated entities, in that they retain lobbyists with strong ties to the appropriations committee.

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3. Which of the following sentences are in passive voice?

I. Congress was perplexed by the proposed agency action.

II. Because of the fact that the bill died on the floor, the House refused to propose new legislation in the area for decades.

III. The Constitution had been ratified by several states because of a promise to add the bill of rights.

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