June 22, 2018

Forging New Writing Conventions: Treat Active and Passive Voice Equally

Seemingly everyone loves critiquing passive voice. Haters have to hate.

The common advice to “avoid passive voice” is wrong. Actually, it’s worse than wrong. It’s a pyramid of wrongs. The advice, as a conclusion, is wrong. So are its premises. Most advice-givers misunderstand what passive voice is. And they misunderstand its advantages and disadvantages. Much of the time, people heard this advice before, never thoughtfully considered it, and repeat it without much thought. So it’s closer to being a rumor than it is to being good writing advice. Open your mind for the next five minutes and let’s fix this.

Even if you know nothing about passive voice, “avoid passive voice” facially makes little sense. It can only have two effects. Some listeners apply it wholesale without discretion, mechanically searching and destroying passive voice. For them, the advice strips away judgment and any notion passive voice could ever help. To other listeners the advice makes no sense. You don’t have to be an evolutionary linguist to know the passive voice must exist for a reason, and we use it when we speak without any problems. These listeners ignore the advice, never develop judgment, and never learn when passive voice helps and when it hurts. Both outcomes are unfortunate and avoidable.

The best advice is much more complicated. Fortunately, as lawyers we specialize in complicated.

What is Active Voice and Passive Voice?

If you are confident you know the difference between active and passive voice then you should be equally confident you are probably wrong. Let’s start with the easy part.

English has two voices: active and passive. In the active voice, the subject performs the verb’s action.[1] In the passive voice, the verb’s action is performed on the subject.[2] These definitions are more clear when you compare sentences written in each voice:[3]


Active Passive
The teacher told us to use the active voice. We were told to use the active voice.
The police questioned the suspect. The suspect was questioned.
I made a mistake. Mistakes were made.


Critically, the passive voice is not the use of particular verbs. Many people try to spot the passive voice by looking for variations of the verb “to be” like “was,” “were,” “is,” “would,” or “had been.” Wrong. This sentence uses active voice: “He was unhappy the provision of services had been so slow.”[4] Don’t feel bad. Everyone does it. Take this example from the New Yorker describing Bernie Madoff’s sentencing:

Two sentences later, Madoff said, “When I began the Ponzi scheme, I believed it would end shortly and I would be able to extricate myself and my clients from the scheme.” As he read this, he betrayed no sense of how absurd it was to use the passive voice in regard to his scheme, as if it were a spell of bad weather that had descended on him.[5]

Where precisely is the passive voice here? “It would end” and “I would be able to” are active voice.

The best way to find the passive voice is to track the definition above: when the verb does not modify the doer. If you want to be more specific, look for variations of “to be” “to get” or “to have” plus a past-tense verb (a past-participle to be precise). [6]

The Classic “Advantages” of the Active Voice

Card-carrying members of the active voice fan club praise it as more concise, concrete and not abstract, lively, and the default expectation of readers.[7] None of these are always true. As a simple example “The motion was denied”(passive) is four words when “The court denied the motion” (active) is five.

What is true is that the active voice is, by definition, clear about who the actor is. When that feature is important to you, use it.

Which is Better: Active or Passive?

Neither. Neither is superior or inferior to the other. There is no rule favoring one, with delineated exceptions permitting the other. There is no presumption or preference.

Passive voice and active voice are two options. They serve different purposes. Use whichever serves your purposes.

When to Use Passive Voice

“If you always avoid the passive, you sacrifice one of the subtlest, most versatile tools the English language affords us.”[8] Sometimes passive voice is helpful, like in these somewhat overlapping scenarios:[9]

The actor is obvious: [10]

“The motion was denied.” We know a court denied it. “Defendants are entitled to summary judgment when . . .” We know the law is what entitles a party to summary judgment under certain circumstances. No one is confused.

The actor is irrelevant or distracting:[11]

“The subpoena was served January 19th.” By who? Phil, Barbara, Subpoena Services Inc.? Does it matter? If what matters is when the subpoena was served then there is no need to introduce a new and irrelevant character to your story.

The actor is unknown:[12]

“Stonehenge was built around 2200 BCE.” Or, if your defense is that the crime occurred but the defendant did not do it, “The victim was murdered later that night.”

To emphasize the action over the actor/To tell the story of the recipient of actions:[13]

In a suppression motion you write “Mr. Smith was ordered to freeze and hand over identification, then his suitcase was searched, and then he was handcuffed.” Who did these things? Government actors. Which government actors? The defense does not care. Whether it was Officer Jones or Agent Smith is irrelevant. The defense neither needs nor wants the court to keep track of that. Passive voice keeps the focus on the defendant and things being done to him.

For the same reason a tort plaintiff’s story might read “Stevens was told it was safe by the defendant. Stevens was told it was legal by the defendant. Stevens was told he could trust the defendant. Stevens was lied to by the defendant.”[14]

This concept can be a bit tricky. But it is perhaps the most important voice decision an author makes. Passive voice emphasizes different actors in your story than active voice. George Gopen provides this helpful illustration:

Smith had notified Jones on the morning of April 7 concerning the lost shipment. (emphasizes Smith’s actions)

On the morning of April 7, Jones had been informed of the lost shipment by Smith. (emphasizes Jones’s knowledge)

The lost shipment had been disclosed by Smith to Jones on the morning of April 7. (emphasizes moment of lost shipment)[15]

This principle can also help when one subject is the recipient of multiple unrelated actions. “Securities agreements are sophisticated contracts. They are usually drafted by specialized attorneys. They are subject to particular regulations. They should only be signed after a careful read.” The passive voice keeps the focus on securities agreements.

To connect one sentence with the next sentence:[16]

“The committee presented the award to Tom. Tom was arrested the next day.”[17] In this couplet the direct object of the first sentence becomes the subject of the next.

To emphasize the end of a sentence.

“When he walked through the door, the victim was already dead.”[18]

To create abstraction:

“In the eyes of the law, all persons are created equal.”[19]

For irony:

“The passive voice should not be used.”


Don’t prefer or avoid passive voice. Don’t prefer or avoid active voice. They have different effects. Choose the voice that suits your needs.

[1] “Active,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/active (last visited May 15, 2018).

[2] “Passive,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/passive (last visited May 15, 2018).

[3] These examples are from “5 Writing Rules Destroyed By The Dictionary,” Merriam-Webster Dictionary (last visited May 15, 2018), https://www.merriam-webster.com/words-at-play/5-writing-rules-destroyed-by-the-dictionary/never-use-the-passive-voice.

[4] Ross Guberman, “Are You Passive-Aggressive?,” Legal Writing Pro (last visited May 15, 2018), https://www.legalwritingpro.com/articles/are-you-passive-aggressive/.

[5] Nancy Franklin, “The Dolor of Money,” The New Yorker (March 23, 2009), https://www.newyorker.com/magazine/2009/03/23/the-dolor-of-money. See Jan Freeman, “What We Get Wrong About the Passive Voice,” The Boston Globe (March 22, 2009), http://archive.boston.com/bostonglobe/ideas/articles/2009/03/22/active_resistance/ (pointing out error in New Yorker article).

[6] Guberman, supra n. 4; “Active and Passive Voice,” Wheaton College (2009), https://www.wheaton.edu/academics/services/writing-center/writing-resources/active-and-passive-voice/.

[7] See Bryan Garner, Legal Writing in Plain English 36 (2d ed. 2013); Richard Wydick, Plain English For Lawyers 27-31 (5th ed. 2005).

[8] George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 153 (2004).

[9] See also id.; George Gopen, “Who Done It? Controlling Agency in Legal Writing- Part I,” 39 Litig. 2 (Spring 2013), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_7_controlling_agency_pt2.pdf; “Active and Passive Voice,” supra n. 6.

[10] See generally Tom Goldstein and Jethro K. Lieberman, The Lawyers Guide to Writing Well 144 (3d ed. 2016).

[11] Wydick, supra n. 7 at 31. Accord Goldstein & Lieberman, supra n. 10 at 144.

[12] Goldstein & Lieberman, supra n. 10 at 144.

[13] George Gopen, “Why the Passive Voice Should be Used and Appreciated- Not Avoided,” 40 Litig. 2 (Winter 2014), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_10_why_the_passive_should_be_used.pdf; Goldstein & Lieberman, supra n. 10 at 144-45.

[14] Gopen, supra n. 13.

[15] Id.

[16] Goldstein & Lieberman, supra n. 10 at 144-45; Gopen, supra n. 8 at 65-70.

[17] See Wydick, supra n. 7 at 31 (using a variation of this example).

[18] Id. (using a variation of this example).

[19] Id.


Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

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