From the May 2006 issue of Barnett’s Notes on Commercial Litigation:

A dear client in a hard case once took to assuring our trial team of victory by telling us that "we will kill them."  An Italian by birth, upbringing, and temperament, the client rendered "kill" as "keel", which made his assurance more, well, assuring.  It worked for us.

In the years since, I’ve comforted other clients by telling them the same thing — even saying it the same way that my friend Alberto Lombardi did.  They love to hear me say we will keel them!

I’ve said we will keel them so many times now that people in my office use it to make fun of my obsessive distaste for passive voice.   My colleagues taunt me with they will be killed by us.  Ouch. 

I don’t like passive voice.  I don’t like it one bit.  Not even a tiny bit is it liked by me.

In my view, passive voice reveals either of three unflattering things about the writer — cowardice, fuzziness of thinking, or slothful ways.  Cowardice in this context means that the writer doesn’t have the guts to identify the actor or wants to hide his identity ("mistakes were made" instead of "I made mistakes").  By fuzzy thinking I mean that the author doesn’t have the wattage to fix the imprecision of his writing ("mistakes were made" seems perfectly fine to this dullard).   Slothfulness  suggests that the author could take the time to connect the actor to the action but chooses not to do the work or to do it in a loopy way ("mistakes were made by me").

A judge who reads passive voice in a brief should extend the magisterial antennae of skepticism.  Alarms should go off.  Red flags ought to billow.  The writer either wants to hide something, doesn’t know what to say, or rates his time as more valuable than yours.

All this adds up to one thing:  passive voice in legal writing shows disrespect to the reader.  It lengthens, complicates, and obstructs writing; it forces the reader to remember too much, to fill too many gaps, to work too durn hard.  The audience deserves better.

Active voice propels the reader forward.  It holds interest.  It makes reading easier, more fun, and maybe irresistible.  It can even save writers from writing nonsense because it forces them to think through exactly what they mean.

Please use active voice always.  Or consequences will be suffered.  By you.

Barry Barnett

Feedicon14x14_2 Our feed always uses active voice.