When to Use the Passive Voice

April 25th, 2015 1:44pm - Posted By: Mark Cohen

In the active voice the subject of the sentence performs the action. In the passive voice the subject is acted upon.  The active voice requires fewer words and tracks how people think. 

Passive: This contract may be terminated at any time by either party on thirty day’s written notice to the other party.  (20 Words).

Active: Either party may terminate this contract on thirty day’s written notice to the other party.  (15 words).

I believe there is only ONE circumstance in which a lawyer should use the passive voice in writing, and that is when you want to hide the blame for something.

Active:  My client made a mistake.

Passive: Mistakes were made.  (But I'm damn sure not going to admit my client made them).

Even Better Passive: Mistakes may have been made.

I've seen others argue that it is also appropriate to use the passive voice when you don't know who performed the action.  For instance if you know the Governor was informed that the legislature had passed a bill, but you don't know who informed the Governor, you could write, "The Governor was informed that the legislature had passed the bill." 

However, I disagree with this use of the passive voice.  You could accomplish the same goal by writing, "The Governor learned the legislature had passed the bill."   Under this approach you use the active voice to focus in what is important -- what the Governor learned.  How the Governor learned it is probably not important, but if it is important, take the time to find out who informed the Governor so that you will better understand the sequence of events. 

So remember: There is only one situation in which a lawyer should use the passive voice, and that is when you want to hide the blame for something.

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Lawyer versus Attorney

April 9th, 2015 5:46pm - Posted By: Mark Cohen

As a lawyer, writer, and plain English advocate, I enjoy seeing other lawyers' business cards.  The typical lawyer's card features the lawyer's name.  Immediately below that you often see, "Attorney at Law."  Why is that?  "Attorney" is a synonym for "lawyer."  That's why you never see a business card that has "Attorney at Plumbing" on it.  So why add "at Law" to the card? It's unnecessary.

With this in mind, I decided I would simply use "Attorney" on my cards.  And I did.  But then one of my friends and colleagues, Jeff Cahn, did me one better.  His cards have "Lawyer" rather than "Attorney" on them.  He eliminated one syllable and used the word most lay people use when they refer to those in the legal profession. I liked that, a lot, so my new cards just say, "Lawyer" beneath my name.

I often see cards that have "Attorney and Counselor at Law" on them.  Maybe an "Attorney and Counselor at Law" can charge more than a "Lawyer."  I don't know.

Finally, I still see cards with "ESQ." after the lawyer's name.  Hundreds of years ago in England, "Esquire" was a title of dignity above "gentleman" and below "knight."  It's 2015.  And we're not in England.  Maybe it's time to for lawyers to allow "ESQ" to R.I.P.

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