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Jacob M. Carpenter, 19 Legal Communication & Rhetoric: JALWD 95 (2022)

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10 Legal Comm. & Rhetoric: JALWD 95 (2022)


As professional writers, attorneys should understand and have command of two of “the worst writing weaknesses”—passive voice and nominalizations. Studies show that compared to active voice, passive voice and nominalizations can make writing slower to read, harder to read, harder to comprehend, harder to remember, less concise, less familiar feeling, and less engaging. However, passive voice isn’t always bad. Expert writers can use passive voice to create cohesion, shift emphasis, imply objectivity, and make readers feel more distant and less emotional about an event. The problem is that attorneys commonly use passive voice indiscriminately, unknowingly, and excessively, amplifying its negative effects while blunting its potential value.

Because heavy use of passive voice and nominalizations is prevalent in much legal writing, this article examines these constructions in a depth they deserve. After explaining what passive voice and nominalizations are—including simple ways to spot each—this article explores past studies that have shown passive voice and nominalizations can impede readers and weaken writing. These studies prove that preferring active voice over passive voice is not just an arbitrary style preference, but rather doing so can increase reader comprehension and recall. This article then examines the other side of the coin—how expert writers can use passive voice carefully to create flow and focus readers in important ways. Attorneys who understand passive voice and nominalizations, can spot them in their drafts, and use them only when its intentional will become more effective legal writers and advocates.

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