Using Verbs to Help Avoid Bias under ABA Model Rule 8.4(g)

As many know, I push students to avoid passive voice as a way to increase clarity.  We can also use careful verb choice to help remove bias.  Under ABA Model Rule 8.4(g) (2016), “It is professional misconduct for a lawyer to” engage in biased conduct, including “discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”  Comment 3 explains “[s]uch discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others.”  See https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/?login

In my classes, we discuss recognizing express and implicit bias, and then I suggest some concrete ways to help avoid bias in our legal writing.  One concrete way to eliminate bias is to choose verbs carefully. 

We know from social science that our verbs matter.  For example, in 1974 Loftus and Palmer published their famous study on eyewitness suggestion via verbs.  See https://www.simplypsychology.org/loftus-palmer.html.  Loftus and Palmer divided 45 students into 5 groups, asked them all to watch a video of a car crash, and then asked each group a slightly different question about the speed of the cars.  Loftus and Palmer manipulated the verb used in the question.  They asked the groups:  “How fast were they cars going when they smashed/collided/bumped/hi /contacted?”  Id.  Participants who heard “smashed” reported an average speed of 40.5 mph, while participants who heard “contacted” reported an average speed of 31.8 mph.  Id.  In other words, the eyewitnesses to the video crash responded to the verbs used by others to describe the crash.

When we hide the actor connected to our verbs, through passive voice, we can manipulate meaning even more.  See Robert C. Farrell, Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions, 40 Loy. U. Chi. L.J. 1, 13-14 (2008).  For example, saying an “enslaver often withheld foods from the enslaved people on his plantation” has a very different meaning than “sometimes, enslaved people were not given food.”  When we use the passive voice about enslavers in my example, we are presenting a biased view of reality by not naming the actor who withheld food.  Thus, by removing the passive verb construction, we also decrease bias. 

Case law also shows how passive voice can create issues.  For example, in United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1183 (10th Cir. 2004), the outcome turned on two competing provisions of the Federal Sentencing Guidelines.  The first provision used passive voice and allowed for a sentence enhancement “if a dangerous weapon” “was possessed.”  Id. at 1183-84.  The second clause allowed for a sentence reduction, under the active voice, if “the defendant” did not “possess a firearm or other dangerous weapon” in “connection with the offense.”  Id. The government argued because the defendant stipulated in plea agreement that a weapon “was possessed” under the first of these provisions, he could not assert he had not “possessed” a weapon under the second.  Id. at 1185. 

The Court of Appeals disagreed, noting, “[u]nder the first enhancing provision, the verb was ‘written in the passive voice, requiring a sentence enhancement “if a dangerous weapon (including a firearm) was possessed.”’  Id.  According to the court, “[t]his verb form did not identify who was doing the possessing and thus was broad enough to cover situations of ‘mere proximity’ to a weapon by a defendant, without a showing of ‘active possession.’”  However, “the verb form in the second, mitigating section, ‘did not possess . . . a firearm,’ is in ‘the active voice[,] requiring the defendant to do the possessing,’ or more accurately, requiring the defendant not to do the possessing.”  Id. at 1186-87.

Hopefully, these ideas will resonate with us as we do our best to avoid any express or implicit bias in our writing.  The more we choose verbs and verb construction carefully, the better chance we have of clearly conveying points for our clients in an unbiased way.