When to Use Passive Voice, 0619 COBJ, Vol. 48, No. 6 Pg. 8

• Author: BY MARK COHEN
• Position: Vol. 48, 6 [Page 8]

48 Colo.Law. 8

When to Use Passive Voice

Vol. 48, No. 6 [Page 8]

The Colorado Lawyer

June, 2019

Modern Legal Writing

BY MARK COHEN

I dislike passive voice. As Dr. Seuss might have written, "I dislike it in a brief, I dislike it when I seek relief. I dislike it when I plead, I dislike it in a deed."^[1]

Active and Passive Voice

Passive voice is verbose and weak, and it allows writers to omit the actor's identity. Lawyers should aggressively edit for it, and almost always eliminate it. If you need a refresher, in the active voice the sentence's subject does something. In the passive voice something is done to the subject. The court denied the motion is active voice. The motion was denied by the court is passive voice. (The motion was denied is truncated passive voice because it omits the actor.)

Benefits of Active Voice

Legal writing experts encourage lawyers to use the active voice.^[2] One reason is the active voice usually requires fewer words. The court denied the motion contains five words. The motion was denied by the court contains seven words. Eliminating unnecessary words makes writing crisper. Additionally, many courts now impose page or word limits,^[3] so removing unnecessary words is a useful skill.

The active voice is also more effective because it conveys conviction and confidence. Writing in the passive voice is a subconscious tell. It suggests the author is less than certain. In fact, appellate lawyers that avoid passive voice are more likely to prevail on appeal.^[4]

The active voice offers another advantage. It better reflects the chronology of events. In the example above, the court acted first; the motion did not decide itself.

The active voice also makes the reader's job easier because the reader expects the subject of the sentence to perform the action of the verb. People usually talk in the active voice.

For lawyers drafting pleadings and documents containing factual allegations, the active voice offers still another advantage: writing in the active voice compels the writer to identify the actor, thus reducing the likelihood that a court will find a pleading defective. For instance, in Coroles v. Sabey, investors filed a complaint alleging they were "falsely told" certain famous athletes had invested in a venture.⁵ The defendants moved to dismiss and argued plaintiffs had not pleaded their fraud claims with the required specificity.⁶ In upholding...