Legal Writing Syntax: Active vs. Passive Voice

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.

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