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Most writers have heard the advice that one should minimize use of the passive voice, but passive constructions remain ubiquitous in legal writing. At least 80% of your sentences should be in the active voice, and your editing process should include a search for unnecessary uses of the passive voice.
In active voice constructions, the subject performs the action of the verb.
“The plaintiff filed a motion to dismiss.”
In that example, the subject, “plaintiff,” performs the action of the verb (“filed”).
In passive voice constructions, by contrast, the subject does not act, but rather is acted upon. Passive constructions omit the actor or place the actor in a prepositional phrase. Look for “by + [actor]” formulations that identify the actor in a prepositional phrase rather than in the sentence’s subject.
A motion to dismiss was filed by the plaintiff.
In that example, the subject, “motion to dismiss,” is acted upon (“was filed”).
While most of your sentences should be in the active voice, passive voice is appropriate if you want to focus on the thing acted upon rather than the actor.
The evidence presented by both parties established . . . .
(What matters is the evidence, not who introduced it.)
The claims were barred by the statute of limitations.
(The writer wants to emphasize that the claims were barred, so the writer frontloads that information in the sentence.)
Passive voice is also appropriate when you want to conceal the sentence’s actor, or when the actor is unimportant or unknown.
A war was started between the two countries.
Here are a few more examples of unnecessary passive voice found in legal filings. How would you revise these?
The evidence did not support the allegation that loose dirt had been dumped on the tracks by the employer.
. . .
The consumers/subscribers were required by the Defendants to select a rate plan in order to enter into a term contract with the Defendants.
. . .
As explained by the District Court, Plaintiff’s allegations lacked any evidentiary basis.
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