Why do lawyers, and judges, use passive voice in their writing?  Don’t they know better?

Perhaps not.  Every day we read briefs and opinions full of passive voice as if it showed extra super cleverness.  Blawgletter adores, but begs to differ with, those writers.

First look at the difference between passive and active voice.  In the last paragraph, for instance, passive voice would say something like:  "Briefs and opinions are read by us every day and are filled with passive voice as if extra super cleverness was shown by its use.  They are disagreed with by Blawgletter."

(If you like the second way better than the first, stop reading.  Now, please.)

A big problem with passive voice, aside from the tedious and fuzzy writing it produces, especially for trial lawyers:  You can’t convey emotion nearly as well. 

Which do you like better, viscerally:

  • "Beauty killed the beast" — or "the beast was killed by beauty"?
  • "Let us bind up the nation’s wounds" — or "the nation’s wounds are to be bound up by us"?
  • "The arc of the moral universe bends toward justice" — or "the arc of the moral universe is bent toward justice"?
  • "You had me at hello" — or "I was had by you at hello"?

Blawgletter believes that it NEVER, EVER, EVER uses passive voice (unless it shows up in a quote).  First reader to prove otherwise wins a free subscription to Blawgletter — and we will throw in Barnett’s Notes, too.

Barry Barnett

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