By Dr. Ken Broda Bahm:
You probably learned it in one of your earliest writing classes: Active voice means the grammatical subject is doing the acting, and passive voice means the subject is acted upon. It is the difference between “The dog bit the boy” (active), and “The boy was bitten by the dog” (passive). In many contexts, but particularly in legal writing and speaking, the active voice is preferred, because it leads to shorter and more direct sentences, and because it avoids the need for a prepositional phrase (“…by the dog”) in order to clarify who did the biting. Active voice, because it puts the actor front and center, is considered the more assertive style, better suited to argumentation and advocacy.
Still, using the passive voice isn’t always a mistake. For example, it can be a strategic choice: Do we want our first focus to be on the boy or the dog? It is also a choice of what kind of effect we want to create in the reader or the listener. Recent research (Chan & Maglio, 2019) shows that using the passive voice conveys a sense of greater objectivity, but also creates perceived distance, with people thinking the content of a message is farther away. Active voice, on the other hand, makes the subject seem to be closer, more immediate, and more concrete. As described in a press release, the researchers conducted five studies involving subjects in Canada, Britain, Australia and the United States. Using identical content, but varying the grammatical voice to be active or passive voice, they found that the two forms “influence the reader beyond what is stated in the written word.” If it isn’t a matter of one voice being right and the other being wrong, it is a matter of each serving different functions and carrying different effects.
For Immediacy and Concreteness, Use Active Voice
Sam Maglio of the University of Toronto, Scarborough, one of the authors of the study, suggests, “If you want your audience to get revved up, you may need the sense of immediacy and closeness that comes with the active voice.” Concreteness, immediacy, and a revved-up audience definitely sound like they would suit the needs of a legal advocate. That’s why, in most cases in legal writing and speaking, you should prefer the active voice.
That means that “The Plaintiff has not responded” is better than “There has been no response,” and “This corporation is placing profits over people” is better than “Profits are being placed over people by this corporation.” We’ve likely known for a long time that the active versions have an advantage, but it is interesting to learn from the study that isn’t just that active voice sounds better, it is that the active construction calls to mind an experience that is going to feel more concrete and more immediate to the listener or the reader.
For Distance and Abstraction, Passive Voice Can Be Used
The authors explain that the passive voice does have a use. “Paragraphs and sentences in the passive voice increase readers’ felt temporal, hypothetical, and spatial distance from activities described in the text, which increases their abstraction in a manner that generalizes to unrelated tasks.” The now-timely example from the Nixon administration that, “Mistakes were made,” highlights the political preference for an admission in the style known as the “truncated passive,” because it hides the actor, in this case, the mistake-makers. It also makes the expression sound more like a generic truism and less like an admission.
So if litigators are wanting to reframe something as accidental or unfortunate — as something that “happened” rather than as something that was done — they might be tempted to use that passive voice: “The collision occurred,” “the artery was severed,” or “the documents were destroyed.” You might even be tempted to call this truncated passive the “defendant’s voice.” However, legal communicators ought to be cautious in their use of that device. Knowing that jurors are savvy, it is safe to assume that they know what is being left out or downplayed. Still, there probably are moments when the abstract and distanced version is more accurate — e.g., when we don’t know how the collision occurred, what severed the artery, or who destroyed the documents.
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Other Posts on Language:
- Make Your Language More Personal and Less ‘Polite’
- Check Your Language Level
- Train Your Witness to Combat Simplistic Equivalence
Chan, E. Y., & Maglio, S. J. (2019). The Voice of Cognition: Active and Passive Voice Influence Distance and Construal. Personality and Social Psychology Bulletin, 0146167219867784.