By Jamie R. Abrams, Professor of Law at American University Washington College of Law
How often have you written the feedback “passive voice” in the margin of a student’s or novice lawyer’s paper, directing them toward the active voice? In some drafts, a reviewer might be able to critique nearly every sentence as passive voice! After twenty years of teaching Legal Research & Writing (LRW), I think we do our students a disservice to treat passive voice as a grammatical lapse. In my experience, it is more often an empowering invitation to have a conversation with students about professional identity.
In passive writing, the legal writer is describing events without naming who acted, who concluded, who argued, or who will decide. This passivity is often more about how the novice writer does not yet view themselves as a lawyer-in-training entitled to speak about the law. Many students, including first-generation students, may want to wait until they are more experienced to bring that degree of clarity because they have not had lawyers modeling this style of writing, but their readers are already counting on them to write with that kind of authority. It can be an empowering transformation in law school to realize that confident writing can come on day one in the supportive environment of the classroom and the supervisory relationship of early work experiences.
Passive voice can reveal that you are working with a student who has entered law school but has not yet been invited (passive voice intentional) to step into the role of someone qualified to speak about the law. Written work that confidently asserts that “the court held,” “the judge will decide,” or “the plaintiff argued” is exactly the substantive value-add that lawyers bring to clients. Lawyers help their readers digest content with ease and clarity because they name the actor and predict the arguments and actions. An early conversation with a novice writer inviting them to step into that role can go a long way to transform their writing – farther than the perennial “passive voice” markings of the red pen.
That same conversation can help novice writers see that there are times when the passive voice plays a strategic role. I still remember the day care “incident reports” that I received when my teething child had bitten another child, masterfully noting that “a friend was bitten,” perhaps softening the blow to my sleep-deprived psyche that it was my child who did the deed. In contrast, when novice writers rely on passive voice throughout, they aren’t accomplishing something; they’re avoiding something. Their readers are counting on them for clarity, and their supervisors entrusted them with the task. The next time our red pen is poised to flag “passive voice” yet again, we might instead start a conversation, one that cultivates the professional identity formation of every student through their writing.
Questions? Please email Jamie Abrams at jamieabrams@wcl.american.edu.
Jamie R. Abrams is Professor of Law at American University Washington College of Law. She has published scholarly articles about legal education pedagogy and won numerous awards for pedagogy innovations.