January-February 2012

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UNSOLICITED ADVICE from Cletus M. Weber Write Actively Most of the Time— But Not Always advice the vast majority of the time. In exceptional circumstances, though, use the "passive" voice instead. W Active vs. Passive "Active" voice means the subject of your sentence does something directly, as in "Johnny kicked the ball." "Passive" voice means the action takes place indirectly, as in "The ball was kicked by Johnny." Passive voice can—and usually does—go one step further to leave the actor out altogether, as in "The ball was kicked." Most students (and lawyers) grossly overuse the passive voice. Passive voice does have its place, but only when strategically passive, not simply lazily passive. Below are some examples of how and when active or passive works better to say what you want—or don't want. Active Voice Makes Things Clearer Most of the time, we want to be as clear as possible. Whether describing an achievement in a national interest waiver petition or a devastating trauma in an asylum case, active voice creates a clearer picture of what happened and who did it. For example, compare the following statements discussing the exact same facts: • Active: "In 2005, Dr. Wang discovered XYZ, she published her paper in ABC journal, and the DEF association awarded her the GHI award." • Passive: "In 2005, XYZ was discovered by Dr. Wang, a paper was published in ABC journal, and a GHI award was received by her from the DEF association." 10 VOICE riting instructors from grade school to graduate school browbeat you to write in the "active" voice, and that's good If one rewrites the second sentence even more passively, it becomes "In 2005, XYZ was discovered, a paper was published in ABC journal, and a GHI award was received." When you write so passively, especially ultra-passively, you waste the opportunity to give your client the full credit he or she deserves. Passive Voice Can Reduce Negative Impact Sometimes, you have no choice but to present the client's version of undesirable facts. Writing as passively as possible while still telling the truth can help reduce the negative impact. For example, compare the following summaries and guess which Don't Do What This Guy Did! Have you ever known an attorney to submit a brief so incomprehensible that the court recommended that he be suspended from the bar? See Stanard v. Nygren, No. 09- 1487, slip op. (7th Cir. Sept. 19, 2011), where the attorney was accused of "rampant grammatical, syntactical, and typographical errors contribut[ing] to an overall sense of unintelligibility." The court went on to criticize the attorney's legal argument, calling it "a vague, confusing, and conclusory articulation of the factual and legal basis for the claims and a general 'kitchen sink' approach to pleading the case." The brief even included a 345-word sentence, which the court called "unnecessarily long."

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