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Two rules make up the bedrock of pretty much any basic writing instruction: know the difference between your and you're, and don't use passive voice. Passive voice is one of the main literary bogeymen, despised by grade school English teachers and law school writing professors alike.
But there are plenty of times when the passive tense is the perfect choice, particularly in legal writing. Here's why.
The Passive Voice Was Demonized
The passive voice, for those who have forgotten, is a specific grammatical construction where the noun that could be the acting object of the sentence appears as its subject. "The motion was filed by Todd" is passive voice, while "Todd filed the motion" is active.
Grammarians, writers, and educators alike have condemned the passive voice for at least a hundred years. There's good reason. In many cases, the active voice simply works much better. It's more direct, more engaging, and often simply more pleasing to the ear. "Mrs. Dalloway said she would buy the flowers herself" works much better than "the flowers would be bought by Mrs. Dalloway, she said."
Embracing the Passive Voice
As Geoffrey Pullum, a professor of linguistics at the University of Edinburgh and seasoned writer on writing reminds us in the Chronicle of Higher Education (via the Volokh Conspiracy), there are certain occasions when passive voice expresses meaning better than the active:
If you were to take a sentence like Smith was arrested, indicted, and found guilty, but the money was never recovered and try to wrestle it into the active voice, as so many writing guides insist you should, you would have to find subjects for all the active verb phrases. You'd need subjects for arrested Smith (the police department? the county sheriff?), and indicted him (a grand jury, as in the U.S.? the Crown Prosecution Service, as in Britain?), and for found him guilty (a judge? a trial jury?), and for recovered the money (the detectives? some bank or post office? the people whose cash had been stolen?). Implementing this pointless and clumsy elaboration would make the sentence nearly twice as long.
Indeed, passive voice can be the perfect choice for emphasizing certain facts and deemphasizing irrelevant or unknown ones. Pullum next dives into a description of John F. Kennedy's assassination. Kennedy "was shot once in the back," we're told, and "was taken to Parkland Hospital," where he "was pronounced dead." All those phrases are in the passive tense. But passive phrasing is much more appropriate here, as it keeps the emphasis on the dying president, instead of bringing in Kennedy's shooter, ambulance driver, and physicians.
Which is to say, go ahead and write with the passive tense when appropriate. After all, rules were made to be broken.
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