- Be able to explain
- The importance of concrete subjects and active verbs; and
- When to use the passive voice.
- Be able to write sentences with concrete subjects and active verbs.
As a lawyer writing an inter-office memo to colleagues or a brief to a court, your audience is busy. They appreciate brevity and do not have time to wade through long-winded text. One way to accomplish this is by writing in the active voice. It will reduce your word count and make your text more interesting.
You have probably read about the active voice. Typically, a sentence written in the active voice is a sentence where the person or thing represented by the grammatical subject performs the action represented by the verb. In contrast, the passive voice is a sentence where the verb is the subject of the sentence, and the subject acts on the person or thing it affects. You can read these abstract definitions multiple times but still need to learn how to write in the active voice. It helps to think instead about choosing concrete subjects and active verbs. My approach for teaching the active voice is based on Richard C. Wydick, Plain English for Lawyers, Teacher’s Manual, Lesson 2 (Carolina Academic Press, 5th ed. 2005).
First, a word about flexibility: while you should usually use the active voice, there is a place for the passive voice. So, be flexible. Use the passive voice when you do not want your reader to focus on the actor or when you want the reader to focus on the action. For example, assume you represent a defendant driver who allegedly hit a pedestrian. In writing about the incident, you would choose the passive voice to keep the focus off your client; for example, the plaintiff was allegedly struck by a vehicle on April 2, 2022.
Choose Concrete Subjects
An effective way to learn how to write in the active voice is to think about who or what you chose as the subject of your sentence. The first principle to remember is that the clearest sentences should follow the normal English word order, which is S-V-O. First, the subject. Next are the verb and the object (if there is one).
Example: The dog (subject) chased (verb) the ball (object).
Here is the same sentence written in the passive voice:
The ball (subject) was chased (verb) by the dog (object).
Notice that when written in the active voice, the sentence contains only five words. In contrast, when written in the passive voice, the sentence contains an extra two words for a total of seven words. That’s an increase of 20%. Assume a twelve-page brief has 3500 words when written primarily in the active voice. If written in the passive voice, the word count can increase by 20%, which balloons it to 4200.
You will likely write in the active voice if you choose concrete rather than abstract subjects for your sentences. Concrete subjects are real people, things, or places that readers can visualize. But as lawyers, we often write about abstract subjects such as tests and rules and make these abstractions the subject of our sentences. To find the most effective concrete subject of a sentence, ask yourself “who or what is doing something in this sentence?” Then place that thing or person in the subject position of the sentence.
The grammatical subject of the next sentence is “documents,” which is an abstraction.
The documents were subpoenaed by the January 6 committee.
But it is the January 6 committee that acts, so it is a better subject.
Here is the sentence rewritten with the committee as its subject:
The January 6 committee subpoenaed the documents.
Question 1: What is the grammatical subject of the next sentence?
Jurisdiction is established when out-of-state actors have minimum contacts with the subject state.
Question 2: But who actually acts?
Question 3: Fill in the missing words to complete the sentence with the actual actor as the grammatical subject.
The grammatical subject of the next sentence is “these problems,” which is an abstraction.
These problems were addressed by the members of the Common Council.
But it is the members of the Common Council who act, so they are the actual subject. To rewrite it in the active voice make “members of the Common Council” the subject. Thus, the sentence becomes: The members of the Common Council addressed these problems.
Question 1a: Identify the grammatical subject and the actual subjects in the following sentence by dragging the labels into the correct boxes.
Question 1b: Rewrite the sentence from Question 1a with the actual actor as the grammatical subject, then compare your answer with the sample answer provided.
Question 2a: Identify the grammatical subject and the actual subjects in the following sentence by dragging the labels into the correct boxes.
Question 2b: Rewrite the sentence from Question 2a with the actual actor as the grammatical subject, then compare your answer with the sample answer provided.
Question: Rewrite the following paragraph replacing the abstract subjects with concrete subjects. Remember to ask yourself “who or what did or is doing something in each sentence?” Then make that the grammatical subject of your sentence.
Citations to New York case law are in New York Law Reports Style Manual form.
Couple Your Concrete Subjects with Active Verbs
When you find a concrete subject, couple it with a verb that describes what the subject actually does. Choose such action verbs, rather than vague verbs; for example, avoid “concerns,” “involves,” and “deals with” since they tell the reader little about the real action in the sentence.
Example – The Fourth Department (subject) dealt (verb) with a vehicle that suddenly crossed over into an oncoming vehicle’s lane of traffic. Gouchie v. Gill,198 A.D.2d 862 (4th Dep’t 1993).
Revised with an active verb – The Fourth Department (subject) held (verb) that the non-offending driver in a cross-over accident was not negligent as a matter of law. Gouchie v. Gill,198 A.D.2d 862 (4th Dep’t 1993).
Replace the vague verb in this sentence with an active verb:
My neighbor is involved in gardening
Suggested answer: My neighbor gardens.
One final note, effective legal writers make their subjects act with base verbs, not nominalizations. A nominalization is a base verb that has been turned into a noun. Thus, argue becomes argument; deliberate becomes deliberation; and consider becomes consideration. Like relying on the passive voice, when you rely on nominalizations your word count balloons, but the meaning of your text remains the same.
In the following sentence the concrete subject (The landlord) is coupled with a base verb (knew):
The property owner knew about the hazardous condition.
Here is the sentence written with the base verb expressed as a nominalization (knowledge):
The property owner had knowledge of the hazardous condition.
Both iterations convey the same message. But by replacing the base verb (knew) with a nominalization “knowledge” you need to add a supporting verb (had).
Question 1: In each sentence, identify the word that is a nominalization. (Choose one word only for each sentence.)
Question 2: Using those same sentences, replace the nominalization with the appropriate base verb.
With practice you will choose concrete subjects and active verbs naturally. But it does take practice. So, I suggest that you read a brief or memo you wrote in your legal writing class with the lessons in this chapter in mind. Then, edit the sentences in that work by removing abstract subjects and replacing them with concrete subjects, and replacing nominalizations with active verbs.