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When Passive is Aggressive

Most of us were taught that good legal writing requires use of the active voice.  The conventional wisdom is that the active voice is powerful writing while the passive voice is the way of the wimp.  It’s true that “the dog bit the man” sounds stronger than “the man was bitten by the dog.”  But, in legal writing, persuasion should be your touchstone–not action.  If used correctly, there are times when the passive voice can be the more persuasive technique.

Use of the passive voice makes the object of an action into the subject of a sentence.  That is, whoever or whatever is performing the action is not the grammatical subject of the sentence.  Take for example this rephrasing of an old joke: “Why was the road crossed by the chicken?”  The chicken is the actor, but he is not in the spot where you would expect the grammatical subject of the sentence to be.  Instead, the road is the subject.  On the other hand, the timeless, “Why did the chicken cross the road?”, puts the actor in the subject position.  This is the position of doing something—crossing a road, getting hit by a car or begging for the sweet relief of death.  (Sorry, Foghorn.)  Once you know what to look for, spotting the passive voice is easy.  Look for a form of “to be” (is, are, am, was, were, has been, have been, will be, will have been, being) followed by a past participle.  The past participle of a verb almost always ends in “-ed.”

So, when is use of the passive voice an effective and persuasive technique?  Here’s the answer:

  1. To emphasize an object.  Here’s an example: “Ten men were required to lift the car.”  This passive sentence emphasizes the number of men required.  An active version of the sentence (“The car required ten men to lift it.”) would put the emphasis on the car, which is less dramatic.
  2. To de-emphasize an unknown subject or actor.  Consider this: “100 different pesticides were found in my beer.”  If you don’t know who the actor is—in this case, if you don’t actually know who was responsible for the pesticides in the beer—then you may need to write in the passive voice.  But remember, if we know the actor and the clarity and meaning of your writing would benefit from indicating him/her/it/them, then use the active voice.
  3. If your reader doesn’t need to know who’s responsible for the action.  Here’s where your choice can be difficult because some instances are less clear than others.  Try to put yourself in the reader’s shoes to anticipate how she will react to the way you have phrased your thoughts.  Here are two examples: “Baby Erin was delivered at 3:30 a.m. yesterday.” (passive) and “Dr. Roberta Smith delivered baby Erin at 3:30 a.m. yesterday.” (active).  The first sentence is more appropriate in a birth announcement because family and friends are (theoretically) much more interested in the object (the baby) than in the actor (the doctor).  But, the second sentence is more appropriate for the medical record of the birth because it focuses on Dr. Smith’s role.

What’s the take away?  The passive voice is like your grandmother’s derringer.  It’s best to keep it in your pocket and not waive it around.  But, when you need it, you’ll be glad you have it.

Winning is for Losers!

Writing a winning brief takes a lot of work, and as the renowned scholar, Homer of Simpson, once said, “If something is hard to do, it’s not worth doing.”  Great advice.  There’s much less pressure to win if you know you probably won’t. The key is to keep your expectations low.  You’ll be a lot happier.  Just follow these simple rules when you’re writing a brief and you’ll be back on your couch in no time.  So, pop open a cold one, kick back and enjoy!

  • Rule Number One:  Longer is better (and not just in porn).  If you can make your argument in 10 pages, 50 is better.  If 50 is not enough, ask the court for 100.  Simple and concise = loser.  Also, don’t forget to adjust the font and margins to squeeze in a few extra pages.
  • Rule Number Two:  Grammar.  It’s so last year.  Be sure not to follow any of the rules you learned in fourth grade English.  You’re a big boy now.

 “[W]inning arguments should not just be buried, they should also be written so as to be totally unintelligible.  Use convoluted sentences; leave out the verb, the subject, or both. Avoid periods like the plague.  Be generous with legal jargon and use plenty of Latin.  And don’t forget the acronyms or the bureaucratese.”  –Hon. Alex Kozinski, Chief Judge, Ninth Circuit Court of Appeals

  • Rule Number Three:  Pick a fight with opposing counsel.  Call him a lying scumbag in your brief.  Judges love a little mano a mano action to distract them from those dreary legal issues.
  • Rule Number Four:  Block quote everything.  It looks so solid and authoritative.  Plus, the judge’s eyes don’t have to work as hard when everything is conveniently located in one dense square.
  • Rule Number Five:  Legalese aka easy legal.  Use it.  A lot.  It’s a pain to try to dumb down everything just so some judge who didn’t pay attention in law school can understand what you’re saying.

Follow these rules and you’ll be on the path to successful losing before you know it.  I look forward to hearing how the rules worked out for you.  And no, I do not want fries with that.