December 17, 2018

Archives for June 12, 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.”

Conclusion

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.

Rule Change 2018(07) Released, Amending Colorado Appellate Rules

On Friday, June 8, 2018, the Colorado State Judicial Branch released Rule Change 2018(07), adopted by the Colorado Supreme Court on June 7 and effective July 1, 2018. The rule change Form 8, “Designation of Transcripts,” in the Appendix to Chapter 32, and also amends Rules 21, 21.1, 49, 50, 51, 51.1, 52, 53, 54, 56 and 57.

While some of the changes are relatively minor, many of the rules were dramatically amended. A redline and a clean copy of the rule change is available here. Appellate practitioners are encouraged to familiarize themselves with the rule changes before their July 1 effective date.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Supreme Court: Announcement Sheet, 6/11/2018

On Monday, June 11, 2018, the Colorado Supreme Court issued five published opinions.

In re People v. Shank

Colorow Health Care, LLC v. Fischer

Verigan v. People

Rocky Mountain Exploration, Inc. v. Davis, Graham & Stubbs, LLP

In re People v. Owens

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Court of Appeals: Settlement Including Reduction for MedPay Amounts Enforceable Post-Calderon

The Colorado Court of Appeals issued its opinion in Arline v. State Farm Mutual Insurance Co. on Thursday, May 31, 2018.

Uninsured/Underinsured Settlement and Release Agreement—C.R.C.P. 12(b)(1) Dismissal.

Arline submitted claims to American Family Mutual Insurance Company (American) under insurance policies that provided $5,000 in MedPay coverage and $50,000 in individual underinsured motorist (UIM) coverage. American paid $5,000 in MedPay benefits on Arline’s behalf and negotiated Arline’s damages under her UIM coverage to be $27,000, after subtracting the $5,000 in MedPay benefits already paid. In November 2015, Arline, represented by counsel, accepted the $27,000 payment and signed a release agreement (Agreement) releasing American under the UIM policy.

In November 2016, the Colorado Supreme Court held for the first time in Calderon v. American Family Mutual Insurance Co., 2016 CO 72, that C.R.S. § 10-4-609(1)(c) prohibits insurers from reducing the UIM benefits paid on a claim by the amount of MedPay benefits paid on that claim, which the court deemed a “setoff.” (Counsel in that case now represents Arline.)  Arline then sued American for breach of contract and seeking class certification, asserting that American had unlawfully reduced UIM payments using a MedPay setoff. American responded that the Agreement was a complete bar to the cause of action and moved to dismiss. The district court found the Agreement enforceable and granted American’s motion to dismiss for lack of standing.

On appeal, Arline argued that the district court erred in dismissing her complaint because American’s payment pursuant to the Agreement caused her to suffer an injury-in-fact to a legally protected interest. Though the supreme court held that C.R.S. § 10-4-609(1)(c) prohibits policy provisions allowing a setoff from other coverage, it did not hold that the statute extended to settlement agreements. An insured may agree to a settlement and release as long as the terms do not violate statutory prohibitions or public policy. If a release agreement is valid, dismissal of claims encompassed by the agreement is proper. Here, Arline entered into the Agreement voluntarily while represented by counsel who was fully informed that certiorari had been granted in Calderon. She negotiated her damages benefits and agreed that the UIM benefit amount paid compensated her sufficiently to warrant releasing American from any further claims. In addition, Colorado public policy favors the settlement of disputes when the settlement is fairly reached. Arline signed a valid release agreement that is not void as against public policy or prohibited by statute. The district court properly dismissed her claim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Determining Ownership Requires Examining Right to Possess, Use, and Control Property

The Colorado Court of Appeals issued its opinion in Kelly v. Board of County Commissioners on Thursday, May 31, 2018.

Property Tax—Residential Land—Common Ownership—Vacant Land—C.R.S. § 39-1-102(14.4)(a).

Kelly purchased two adjacent parcels of land in Summit County. She built a home on one parcel and left the subject parcel vacant. Sometime later, Kelly placed the residential parcel in an irrevocable trust and the subject parcel in a revocable family trust. Kelly was the settlor, trustee, and beneficiary of both trusts.

For tax purposes, the Summit County Assessor classified the residential parcel as residential land but the subject parcel as vacant land, which is taxed at a higher rate. In 2016, Kelly appealed the subject parcel’s classification to the Summit County Board of County Commissioners, requesting that it be reclassified as residential under C.R.S. § 39-1-102(14.4)(a), and sought a tax abatement for the tax years 2014 and 2015. The County denied the petition. The Board of Assessment Appeals (BAA) affirmed, finding that because the two parcels were owned by two separate trusts, they were not commonly owned and therefore the subject parcel did not qualify under the statutory section.

On appeal, Kelly contended that the BAA erred in concluding that the subject parcel was not residential land. She argued that the BAA misconstrued the “common ownership” element of C.R.S. § 39-1-102(14.4)(a). The statute does not define common ownership, and the Property Tax Administrator has neither defined nor offered guidance to assessors on determining whether parcels are under common ownership. The BAA and the County interpreted “common ownership” to mean the same record titleholder. The court of appeals focused its analysis on the meaning of “ownership,” noting that ownership goes beyond mere record title and focuses on who has the power to possess, use, enjoy, and profit from the property. It concluded that ownership of contiguous parcels for purposes of C.R.S. § 39-1-102(14.4)(a) depends on a person’s or entity’s right to possess, use, and control the contiguous parcels. Here, the unchallenged testimony that Kelly was the beneficiary, trustee, and settler of both trusts established that Kelly held legal title to and was the equitable owner of both parcels. Further, Kelly testified that she only placed the parcels in the trusts on the advice of counsel for tax and estate planning purposes and that she possessed, controlled, and used the parcels before and after they were placed in trust. The Assessor testified that she considered the parcels separate simply because the names on the trusts were different. The court of appeals concluded that the parcels were under common ownership for tax years 2014 and 2015 and the BAA erred in denying the request to reclassify the subject property.

Kelly also argued that the BAA abused its discretion when it rejected the parties’ stipulation that the contiguous parcels element was not at issue. The BAA’s decision to reject the signed stipulation two months after the close of evidence and without notice to the parties was manifestly unfair.

The BAA’s order was reversed and the case was remanded with directions for the BAA to reclassify the subject parcel as residential land.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Single Notice Addressed to Married Homeowners Deemed Constitutionally Adequate

The Colorado Court of Appeals issued its opinion in Cordell v. Klingsheim on Thursday, May 31, 2018.

Tax Sale—Adequate Notice—Treasurer’s Deed—Due Process—Reinstatement Order.

The Cordells owned a tract of land in La Plata County. After they failed to pay taxes for several years, Heller purchased a tax lien for the property and assigned it to Klingsheim, who later requested a deed from the La Plata County Treasurer. Before issuing the deed, the Treasurer sent the Cordells a copy of the notice of application for a treasurer’s deed by certified mail. The notice was mailed to the Cordells in one envelope, using a New Mexico address listed for the Cordells in the county tax records. A return receipt was received indicating the notice had been received by Mr. Cordell’s mother. The Cordells did not redeem, and the Treasurer issued a treasurer’s deed to Klingsheim.

Sometime later the Cordells learned of the notice and filed suit seeking a declaratory judgment that they were the owners of the property and the treasurer’s deed was void. The trial court ruled that the Treasurer had not made a “diligent inquiry” in attempting to notify the Cordells that their land might be sold to satisfy the tax lien and voided the deed. The alternative basis for the decision was that the deed was void because no “separate notice” was mailed to Ms. Cordell. The Court of Appeals previously affirmed the voiding order but did not address the “separate notice” argument. On certiorari review, the Colorado Supreme Court concluded that the Treasurer fulfilled the diligent inquiry duty and the Treasurer’s transmission of the notice by certified mail satisfied due process, and the Court reversed and remanded the case. On remand to the Court of Appeals, the Cordells requested the division to consider the separate notice argument. The division declined to do so, and a mandate was issued reversing the voiding order and remanding the case to the trial court. On remand, the trial court issued a reinstatement order without substantive analysis of its own.

On appeal of the reinstatement order, the Cordells argued that the trial court was not required to reinstate the treasurer’s deed on remand because the Supreme Court’s holding reached only one of the two grounds on which the trial court rested the voiding order. Neither the Supreme Court nor the trial court reached the separate notice issue. Because the issue was not resolved, the Court of Appeals considered whether the trial court’s failure to consider the issue warrants reversal. Here, the Cordells were married and both were receiving mail at the same address. The Court concluded that notice mailed to both record owners in a single piece of mail is constitutionally adequate. Thus, the reinstatement of the treasurer’s deed on remand was proper.

The reinstatement order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/11/2018

On Monday, June 11, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Holloman v. Walcher

Daniel v. Dowling

United States v. Vargas-Ortega

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.