Lawyers should prefer the active voice over the passive in legal documents (like contracts, terms, opinions, laws, affidavits, and pleadings). Most writers follow this principle when they write. But lawyers often don’t and they argue that legal documents are different and different principles apply. In all of your writing, you want your writing to be clear, concise and easy to understand. Yes, there are a few instances where you have to use the passive voice but about 95% of sentences should be active.

Many lawyers are addicted to the passive voice and they need to break their addiction. It is often not their fault. Lecturers, professors, judges, senior lawyers often all write in the passive voice and they simply follow the established practice. Many lawyers think the passive voice just sounds more lawyerly. International plain legal language experts (like Bryan A. Garner) from many countries have written extensively about this principle and they all agree.

Put your sentences in the active voice, unless you need to use a passive

An example of the active voice vs the passive voice in legal documents

A sentence comprises three parts. These parts are the subject, verb and object. The subject is generally the person or the thing doing an action. The verb is the action. An object is a thing that the subject is doing the action to. The best way to describe this is by way of example. Consider these two sentences:

  1. The ball was kicked by the boy.
  2. The boy kicked the ball.

Our first sentence is in the passive voice. The second one is in the active voice. With the passive voice, your sentences tend to have extra words. The active voice has fewer words. And you know who is acting. With the passive voice, the subject of the clause doesn’t perform the action but receives it. The principle is widely accepted for general writing and there are lots of further examples.

But what about legal documents? Are they different? No, they are not. Consider these two sentences:

  1. The landlord will be paid by the tenant monthly.
  2. The tenant will pay the landlord monthly.

How to identify the passive voice

Bryan A. Garner has a clever rule to help you identify if there are passive’s in your writing: “If you see a be-verb followed by a past-tense verb, you have a passive-voice construction”.  This rule may save you some editing time.

Sometimes you need to use the passive voice in legal documents

Using the active voice is not an absolute principle that needs to be followed all the time. You may find that passives could make a sentence sound less hostile or are necessary if you don’t know who the subject of the sentence is.

  1. Vendor is not liable for any damages suffered.
  2. Vendor is not liable for any damages Customer suffers.

The first is in the passive voice and gives the vendor much greater protection. But only use the passive voice when you have to. You shouldn’t need to in more than about 5% of your sentences.