Mastering Active vs. Passive Voice in Legal Writing

In legal scholarship and practice, the choice between active and passive voice directly impacts the clarity of liability and the force of an argument. While legal writing often defaults to passive constructions to sound formal, mastering the active voice is essential for identifying actors and assigning responsibility in judicial opinions and briefs.

What Is an Active Vs Passive Voice in Law?

Active voice occurs when the subject of the sentence performs the action, whereas passive voice occurs when the subject receives the action. In law, this distinction is functional: active voice is used to attribute specific conduct to a defendant or petitioner, while passive voice is strategically employed when the actor is unknown or when the writer wishes to de-emphasize the person responsible for a harmful act.

Before You Start

• Identify the 'Actor' in your legal argument—whether it is the court, the legislature, or the tortfeasor.
• Review the Bluebook or ALWD rules for citing cases, as citation placement often dictates sentence structure.
• Determine your rhetorical goal: are you trying to emphasize the victim's suffering or the defendant's negligence?
• Distinguish between 'be' verbs (am, is, are, was, were) and action verbs that define legal standards like 'breached' or 'violated'.

Identify the Legal Actor First

Before drafting a sentence about a statutory violation, decide who performed the act. Placing the actor at the beginning of the sentence creates a clear chain of liability.

Example: Active: 'The defendant breached the duty of care.' Passive: 'The duty of care was breached by the defendant.'

Tip: Start your sentences with the party you want the judge to focus on.

Use Active Voice for Judicial Rulings

When discussing precedents from the Supreme Court or Appellate Courts, use active voice to show the court's authority and active decision-making process.

Example: Active: 'The Supreme Court held that the statute was unconstitutional.' Passive: 'It was held by the Supreme Court that the statute was unconstitutional.'

Tip: Avoid 'It was held that'; it adds unnecessary word count and obscures the court's power.

Employ Passive Voice to De-emphasize Fault

Defense attorneys often use passive voice to make a client's actions seem like events that 'just happened' rather than choices that were made.

Example: Passive: 'The contract was signed without a full review of the terms.' Active: 'The client signed the contract without reviewing the terms.'

Tip: Use passive voice when you want to draw attention away from your client's specific actions.

Clarify Statutory Obligations

When interpreting a code or regulation, active voice clarifies who is required to act, which is vital for compliance advice.

Example: Active: 'The SEC requires firms to disclose all material risks.' Passive: 'All material risks must be disclosed by firms under SEC rules.'

Tip: Check if your sentence clearly tells the reader 'who' must follow the rule.

Eliminate Nominalizations

Legal writers often turn verbs into nouns (nominalization), which forces the use of passive 'be' verbs. Reverting these to active verbs makes prose more persuasive.

Example: Active: 'The parties disagreed about the settlement.' Passive: 'There was a disagreement between the parties regarding the settlement.'

Tip: Look for words ending in -tion or -ment and try to turn them back into verbs.

Use Passive Voice When the Actor is Unknown

In criminal law or torts where the perpetrator is unidentified, passive voice is the only accurate way to describe the facts.

Example: Passive: 'The evidence was tampered with before the police arrived.'

Tip: Only use passive voice if the 'who' is truly irrelevant or unknown to the court.

Strengthen Your Statement of Facts

In a trial brief, use active voice to create a narrative of the events that led to the litigation. This makes the story more engaging for the reader.

Example: Active: 'Mr. Jones drove through the red light and struck the plaintiff’s vehicle.'

Tip: In the facts section, active voice helps the judge visualize the incident clearly.

Common Mistakes to Avoid

• Overusing 'It is' or 'There are' to start sentences in Law Review articles.
• Using passive voice in the 'Conclusion of Law' section, which makes the legal reasoning sound hesitant.
• Failing to identify the specific government agency responsible for a regulatory action.
• Hiding the subject of a sentence behind a long prepositional phrase.
• Assuming passive voice is more 'academic' or 'professional' than active voice.

Pro Tips

• Search your document for 'by'—it is often a sign of a passive construction that should be active.
• In a Reply Brief, use active voice to aggressively point out the opposing counsel's errors.
• Use passive voice in a 'Statement of the Case' if you are representing a defendant and want to sound objective and detached.
• Read your 'Question Presented' aloud; if it uses passive voice, it often lacks the punch needed to frame the issue in your favor.
• Keep the subject and verb close together to ensure the reader doesn't lose track of who is acting.

Frequently Asked Questions

Is passive voice ever acceptable in legal writing?

Yes, passive voice is acceptable when the actor is unknown, when the focus should be on the object of the action (e.g., 'The victim was struck'), or to vary sentence structure in a long brief.

Why do law professors prefer active voice?

Active voice is more concise and direct. In law, precision is paramount, and active voice ensures there is no ambiguity about who is responsible for a legal action or breach.

How do I change a passive sentence to active in a memo?

Identify the person or entity performing the action in the 'by' phrase, move them to the front of the sentence, and change the verb to a direct action word.

Does active voice make my legal writing sound too aggressive?

Not necessarily. Active voice simply provides clarity. While it is more forceful, it is considered the standard for high-quality professional legal advocacy and scholarship.

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