Legal English: Passive or Active!

We are producing a series of Legal English blogs in collaboration with our Legal English specialist, the rather appropriately named Victoria Laws.

When writing in the active voice, the subject of the sentence acts whereas in the passive voice, the subject of the sentence is acted upon.

When studying law, students are often advised to write using the active voice opposed to the passive voice. However, in practice the passive voice is often used in communication of the legal kind. There are likely several reasons behind this linguistic choice.

Firstly, legal professionals often prefer to keep a professional distance. By removing the subject or the personal pronoun (‘I’), from the sentence, the sentence becomes passive. This produces a more indirect & formal affect.

Also, it could be the case that who drafted the contract is irrelevant and that the essence of the message is that the contract is ready in draft form. The passive voice achieves this shift in emphasis nicely, for example

• I have drafted the contract.
• The contract has been drafted.

Secondly, this linguistic switch can also prove a useful tool in adversarial court systems where the Prosecution may choose to use the active voice in order to purposely refer to the defendant by name, yet the defence will choose to use the passive voice to avoid their client being continually highlighted as the perpetrator:

• Mr. Smith stole the telephone on Monday morning.
• It has been alleged that the telephone was stolen on Monday morning.

Additionally, it may be unclear or even unknown who or what is carrying out the action. A good example of this can be seen in crime reporting where the perpetrator may not yet be known.

• The crime was committed in the early hours of the morning.

However, there are disadvantages to overuse of the passive voice.

Particularly in written communication of the legal kind, it can cloud meaning by giving the impression that wordy prose has been chosen because the person does not really know what they are saying or is unclear on the exact point to be conveyed. If this really is the case – stop! Work out what the point is and re-structure your sentence. A succinct sentence in the active voice directly addressing the question at hand is far preferable to linguistic nomadic wanderings that never get to the point.

To conclude, using the passive voice is certainly an effective tool for legal professionals but should be used with care & caution! Where possible, choose to write in a simple & energetic manner by using the active voice.