Honing Legal Writing Skills: Passive Voice and Parentheticals

By Josh Taylor

This article was originally published on Attorney At Work.

“Write well. Your career depends on it.” Those words are etched all around our Writing Resource Center offices at The John Marshall Law School in Chicago. The mantra is so simple it’s almost forgettable, especially to those of us long removed from the halls of legal learning and out in a world of constant deadlines, expectations and strife.

It’s those of us far removed from everyday reminders that arguably need to practice our legal writing skills the most. As legal writing master Bryan A. Garner reminds us, the mindset that “you shouldn’t fuss about your writing — that good enough is good enough” is a costly one. As Garner puts it, if your legal writing is “artless and sloppy, [your audience] may assume your thinking is the same,” and no lawyer can afford that inference.

This post begins a series of #LegalWritingReminders that I hope will help everyday practitioners improve their written work little by little. Professor and legal writing expert Ian Gallacher notes that, just like professional violinists, professional writers (which includes all lawyers) should spend some time each day honing their technical skills. This series will include rules, optional techniques and simple suggestions to remind us that strong writing makes us better lawyers. Practice makes perfect, so let’s get started!

Reminder 1: (Almost) Never Use Passive Voice

The woman drove the car.

The car was driven by the woman.

The first sentence above is in active voice and the one below it is in passive voice. Active voice means that the subject or actor begins the sequence, followed by the verb or action, followed by the object or the thing acted upon. Passive voice flips that order around (or eliminates the subject altogether). Notice immediately the difference in sentence length. In a profession consumed with efficiency, why in the world would you make a reader suffer through more words than necessary to say the same thing? Judges and clerks hate that. Relatedly, imagine a more extreme passive example wherein the reader might have to wait a full line of text (or more) to realize the subject or actor of the sentence.

The defendant’s own story was corroborated, after several long hours of interrogation, surveillance and re-interrogation, and despite his own inability to describe important details of the night of the incident, by the defendant’s (drum roll, please!) sister.

Painful at most, and frustrating at least.

For whatever reason, passive voice has taken hold as a go-to “space filler,” and lawyers slip into it all the time. Don’t make your reader wait for the most important part of the sentence. Avoid passive voice 99.9 percent of the time in your legal writing. Your briefs and memos will be shorter, and your readers will be happier.

Exceptions

Writers may use passive voice as a persuasive technique to mindfully accomplish burying, obscuring, or softening certain information.

• A criminal defense attorney may admit that “the man was murdered” without implicating anyone by including a sentence subject.
• A family law attorney may soften the blow of his client’s actions by putting the client at the end of a less severe sentence. For example, “The child was taken to Indiana by his father on April 3, 2018” instead of “Respondent took the child to Indiana on April 3, 2019.”

Also, note that “voice” has nothing to do with “tense.” Past, present, and future tense can all exist within active or passive voice.

Practice

Pull out the last thing of substance you filed in court, and try to spot the first three instances of passive voice.

• “Was” is a good flag for passive voice — it doesn’t always indicate passive voice was used, but it’s a good starting place.
• Ask: “Did I intentionally use passive voice here?” If so, jot the reason next to the passive sentence or phrase. If not, rewrite the sentence in active voice

Reminder 2: Case Parenthetical Structure

Full sentences get periods. Incomplete clauses do not. When explaining the contents of a citation, treat information in the parenthetical the same as you would a traditional sentence or clause.

• Incorrect: Smith v. Jones, 735 F. Supp. 2d 112, 114 (N.D. Ill. 1998) (Holding that IIED claims “can proceed only where there are physical manifestations” of emotional distress.).

Beginning a parenthetical with “holding” or “stating” or other similar introductory material makes the sentence incomplete so that the period inside the parenthetical is inappropriate. There are a few fixes:

• Correct: Smith v. Jones, 735 F. Supp. 2d 112, 114 (N.D. Ill. 1998) (IIED claims “can proceed only where there are physical manifestations” of emotional distress.).
• Correct: Smith v. Jones, 735 F. Supp. 2d 112, 114 (N.D. Ill. 1998) (holding that IIED claims “can proceed only where there are physical manifestations” of emotional distress).