Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, March 17, 2018

Passive, Pinker, and Persuasion


No construction could have survived for millennia if it did not serve a purpose.

—Steven Pinker, “Passive Resistance”

I am once again pleased to welcome Professor Patrick Barry of the University of Michigan Law School to our blog for this guest post. 

Many lawyers shutter when writers use passive constructions. Some may even hear, ringing in their ears, the voice of one of their former teachers telling them that passive constructions should be avoided at all costs.

I recommend you quiet that voice.

You don’t have to quiet it entirely. You don’t have to silence it.  More than likely, your teacher’s admonition came from a good place, a place that recognizes that active constructions are often preferable to passive constructions, that they can give your sentences a directness and vigor that passive constructions frequently don’t.

Passive constructions can be droopy. They can be sluggish. Worse, they can allow people to duck responsibility. “I’m sorry that your nose was broken” is a pretty lame apology from someone who just punched you in the face. “I’m sorry I broke your nose” is at once more active and more admirable.

 At the same time, however, a categorical ban against passive constructions is like a categorical ban against using your left hand. You may be able to get by without your left hand in many situations. You don’t normally need it, for example, to shake someone else’s hand, or to salute, or to perform the pledge of allegiance. But eventually, if you act as if you can never use your left hand, you’ll unnecessarily limit yourself and forgo a lot of creative versatility. 

The psychologist Steven Pinker describes this versatility in “Passive Resistance,” an essay that argues active constructions aren’t always the best choice. The author of several books on language and the chair of the Usage Panel of the American Heritage Dictionary, Pinker suggests that passive constructions are supremely useful when you want to put the spotlight, not on the doers of a particular action, but on the recipients. Think of the phrase “all men are created equal” from the Declaration of Independence. The spotlight is on “all men” and the equality each shares. It is not on the being who did the creating. The same is true of the very next clause, which begins “that they are endowed by . . . .“

Pinker doesn’t use the Declaration of Independence to support his point—but he could. He could also use skillful bits of legal writing. Here for, example, are two passages from briefs written by Jeff Fisher, one of the country’s top appellate advocates and the co-director of Stanford’s Supreme Court Litigation Clinic. The first passage comes from Crawford v. Washington, a case in which Fisher, using arguments developed by the University of Michigan’s Richard Friedman, persuaded the Supreme Court to radically transform the way hearsay evidence is treated in criminal trials. I have bolded the passive part.

Applying this traditional, testimonial understanding of the Confrontation Clause, the proper result here is clear: [Crawford’s] confrontation rights were violated because the State introduced a non-testifying accomplice’s custodial examination implicating him in the charged offense.

You could make that passive part active. You could write “The State violated Crawford’s confrontation rights . . . .“ But then the spotlight would be on the State. Fisher, with good reason, kept it on his client (Crawford). The passive part gave Fisher the flexibility to do that. The passive part was purposeful.

Fisher did something similar in United States v. O’Brien, another case he won in the Supreme Court. This time, however, he used a passive construction to put the spotlight, not on a person, but on the absence of an action. In fact, he used three of them right in a row.

When one of the guards fled, the men promptly abandoned the attempted robbery. O’Brien drove Burgess and Quirk away in the minivan. No shots were fired, no money was taken, and no one was injured.

A version of this passive trifecta was picked up and used in the Court’s majority opinion, which eight of the nine justices signed and Justice Anthony Kennedy penned. “[O’Brien, Burgess, and Quirk] abandoned the robbery and fled without taking any money,” Kennedy wrote in his description of the facts of the case. “No shots were fired, and no one was injured.


Does this mean that if you use passive constructions, the Supreme  Court and other key decision makers will be persuaded by your arguments?

No. It doesn’t mean that at all. In the Supreme Court and most every place else, sound strategy still favors active constructions. No style guide I know comes out against them. And particularly if you are just starting out at a new job, in a new class, or with a new boss, you should keep in mind that frolics into the passive may be judged harshly. So here’s some advice I give my students. It has three parts.

  • Part 1: Know the difference between passive constructions and active constructions. Writing in the Los Angeles Times, grammar columinist June Casangrande explains the difference this way:

The passive voice, sometimes called simply “the passive,” describes a very specific relationship between a [] verb and its object. For example, “coffee” is the object of the verb “made” in “Joe made coffee.” This is active voice because the doer of the action is also the subject of the sentence.

But what if we said instead, “Coffee was made by Joe”? Now the coffee, the thing receiving the action of the verb, is the grammatical subject of the sentence, upstaging the person who's actually performing that action.

That’s passive voice. It takes the object of a verb and makes it the grammatical subject of the sentence by using a form of the verb “be” paired with what’s called the passive participle, which is identical to the past participle.

The result often takes the form “Blank was blanked by blank.”

  • Part 2: Don’t slip into passive constructions accidentally. They are likely to bring with them a bunch of extra words, each of which may weigh down and de-energize your sentences. They also sometimes make it harder for readers to figure out what you are trying to say. Which is a reason why articles in various science journals—including two of the most prestigious ones—have at different points encouraged writers to use active constructions instead.

Nature journals prefer authors to write in the active voice (“we performed the experiment. . .”) as experience has shown that readers find concepts and results to be conveyed more clearly if written directly.

            —“Writing for a Nature journal” (Nature)

Choose the active voice more often than you choose the passive, for the passive voice usually requires more words and often obscures the agent of action.

            —Submission Guideliness (Science)

  • Part 3: Do use passive constructions purposefully, particularly when trying to keep a certain person, idea, object, or non-action “spotlight” in the spotlight, as Jeff Fisher did in those two Supreme Court briefs and as skilled writers do all the time.

If you are worried that your purposeful use of a passive construction will be interpreted as an accidental use of a passive construction, a further step would be to use a comment bubble, post-it note, or some other annotation to tell your teacher or supervisor that your choice was deliberate. Even if she ultimately changes the construction back to active, at least she’ll know you are someone who thinks carefully, even strategically, about the words you choose. That’s unlikely to hurt your career prospects.

Patrick Barry teaches at the University of Michigan Law School. He is the author of the forthcoming book Good with Words: Writing and Speaking and the curator of Good Sentences, a digital library premised on the idea that to write good sentences, you need to read good sentences.

| Permalink


Post a comment