Saturday, July 23, 2022
Many of my students believe I “prohibit” any use of passive voice. I certainly discourage passive voice, especially in objective writing. As I explained in past blogs, I even use E-Prime sometimes, avoiding “to be” verbs to assist with clarity. As Bryan Garner explained in his 2019 Michigan Bar Journal piece: “Stylists agree” passive voice is “generally weaker than active voice. It requires two extra words, and the subject of the sentence isn’t performing the action of the verb--you’re backing into the sentence with the recipient of the action. And the actor either is identified in a prepositional phrase or is missing altogether.” Bryan Garner, Eliminate Zombie Nouns and Minimize Passive Voice, 98 Mich. B.J. 34 (Dec. 2019).
However, I also remind students passive can help occasionally, such as when brief writers deliberatively de-emphasize their clients’ acts with language like “the bank was robbed.” Garner has nice notes on this as well, explaining passive voice “does have its place” where the “recipient of the action may be more important than the actor (e.g., the defendant was convicted)” or “the actor may be unknown (e.g., the building was vandalized),” or where “passive voice simply sounds better,” for example, like moving “a punch word to the end of a sentence for impact (e.g., our client’s bail has been revoked).” Id. at 34.
As I pulled together fall reading materials for my incoming 1Ls, I was struck—again—by how much we can learn from Garner’s examples on spotting and removing passive voice. Garner asks us to count the passive voice examples in this passage:
In Reich v Chez Robert, Inc, the court found that § 203(m) required three conditions to be met before an employer can lawfully reduce the amount paid to an employee by a tip credit: (1) the employer must inform each employee that a minimum wage is required by law; (2) the employer must inform each employee of the dollar amount of the minimum wage; and (3) the employee must actually keep the tips received. It is clear under the law that vague assertions of the restaurant’s compliance with the notice provision of §203(m) do not constitute compliance. Instead, testimony regarding specific conversations where the provisions of the Act were explained to an employee must be provided.
Then Garner says, “Guess what? Few law-review editors could accurately spot every passive-voice construction in that passage.” Id. at 35. Students who struggle to remove passives will rejoice reading this, but the true help in Garner’s article is the way he shows us how to edit even more precisely than those law-review editors.
I especially like Garner’s explanation: “From a mechanical point of view, passive voice has two parts: a be-verb (e.g., is, are, was, were) and a past participle (e.g., broken, sued, considered, delivered).” Id. Thus, we should “[w]atch for two things when trying to spot passive voice. First, some constructions that appear passive really just involve a past participial adjective: He was embarrassed. Now, if you make that He was embarrassed by Jane, then it is passive (because embarrassed then functions as a verb); but with embarrassed alone at the end, it’s just a participial adjective.” Id.
This “subtle point” can be lost on struggling students, but they can gain understanding with Garner’s second point: “the be-verb may not actually appear in the sentence. It may be what grammarians call an “understood” word, as in the amount charged will vary (the full sense of the phrase is that is charged) or the fee set by the trustees (the complete relative clause is that is set).” Garner tells us, “[t]hese constructions with implied be-verbs are indeed passive.” Id.
Returning to the challenge passage, Garner says there are six passives: “(1) to be met, (2) paid, (3) is required, (4) received, (5) were explained, and (6) be provided.” Id. Looking for these passives can be a nice group or in-class exercise, and students can gain understanding from reviewing this example together. Garner notes we can all “take some extra credit” if we spot “paid” and “received,” as “they have understood be-verbs, to be paid and that are received.” Id.
Finally, I would ask students to re-write this passage, with the most direct language possible. Students, and lawyers, can then compare their revisions to Garner’s:
In Reich v Chez Robert, Inc, the court found that § 203(m) requires an employer to meet three conditions before reducing the employee’s tip credit. First, the employer must inform each employee that the law imposes a minimum wage. Second, the employer must say what that wage is. It isn’t enough for the restaurant to assert vaguely that it has complied with either requirement; the court will require clear testimony about specific conversations in which the employer explained the Act. Third, the employee must actually keep the tips.
Id. Garner removed what he calls “zombie nouns” along with passive voice, and made the “reader’s job” much easier. Id. Hopefully, this exercise will help you add clarity to your own writing, and give you an interesting tool to teach others.