By Bryan A. Garner
Bryan A. Garner (@bryanagarner), President of LawProse Inc., is the author of The Elements of Legal Style , Legal Writing in Plain English , The Winning Brief , The Winning Oral Argument , The Redbook: A Manual on Legal Style , and many other books. Since 1994, he has been editor in chief of all editions ofBlack’s Law Dictionary.
One thing you’re certain to be doing in a law-related job is writing. So take every word you write seriously. You’ll be judged by your words.
At the sentence level, two perils can spoil your writing: zombie nouns and passive voice. You need to be thoroughly familiar with them, or else they’re unavoidable.
The first consists of burying the action in an abstract noun. Linguists call this “nominalization” (itself a long abstract noun) because to nominalize is to form a noun. I call the result of this process a “zombie noun” because it’s essentially both dead and deadening. You can make a contribution (worse) or you can contribute (better). You can have a discussion about the issues (worse) or you can discuss the issues (better). You can make provision for indemnification of someone (worse) or you can indemnify someone (better). Look especially for words ending in –ion. Examples are endless.
Zombie nouns are actually more harmful to your style than passive voice. They mark plodding prose. How? Three ways.
First, they’re longer than the verbs they displace—by at least one syllable (e.g., know becomesknowledge), and often by two (e.g., interpret becomes interpretation). Longer words weigh down prose. Instead of tightening sentences, you’re padding them. Plus, when you change the long noun back into a shorter verb, you often eliminate a prepositional phrase: authorization by the board may become the board authorized. Eliminate those zombie nouns and your writing will be snappier.
Second, they reflect muddy thinking. Writers hide behind zombie nouns because the long nouns seem more technical and less subjective. To charge a party with being in violation of an agreement seems less personal than saying the party violated the agreement. The wordier form is less concrete, less focused on the issue at hand. Curtail those zombie nouns and your writing will be clearer.
Third, unlike the zombies of the movies, zombie nouns are stagnant and dull. They don’t do anything. To liven up the sentence, give it action. Just liberate the inner verb. When you read that police areconducting an examination of physical evidence, you don’t visualize what’s going on—it sounds like something that goes on behind closed doors. But when you read that the police are examining that evidence, you more nearly get a mental picture of the action itself. Uncover those zombie nouns and your writing will have more impact.
Consider a sentence from a brief: “There was a disagreement between the parties about whether there had been a final resolution by Judge Bertelsman of Fannin Corporation’s request.” Cut that 22-word sentence down to 13 words—and make it sharper, clearer, and stronger—just by uncovering the zombie nouns: “The parties disagreed about whether Judge Bertelsman had finally resolved Fannin Corporation’s request.” Some people would erroneously diagnose the problem with the original as being passive voice.
That’s the other major peril: regularly putting your verbs in the passive voice. You’ve heard this one before, of course. Don’t use passive voice. That advice may resonate in your mind. But how well can you identify passive voice? Count the examples in the following passage:
In Riech v. Chez Robert, Inc., the court found that § 203(m) required three conditions to be met before an employer can lawfully reduce the amount paid to an employee by a tip credit: (1) the employer must inform each employee that a minimum wage is required by law; (2) the employer must inform each employee of the dollar amount of the minimum wage; and (3) the employee must actually keep the tips received. It is clear under the law that vague assertions of the restaurant’s compliance with the notice provision of §203(m) do not constitute compliance. Instead, testimony regarding specific conversations where the provisions of the Act were explained to an employee must be provided.
Guess what? Few law-review editors could accurately spot every passive-voice construction in that passage. Let’s come back to the answer after fixing in our minds exactly what the passive voice is.
It all has to do with the difference between acting and being acted on: in active voice the subject acts, while in passive voice the subject is acted on. From a mechanical point of view, passive voice has two parts: a be-verb (e.g., is, are, was, were) and a past participle (e.g., broken, sued, considered, delivered). Contrary to popular belief, a be-verb alone isn’t passive voice at all: there must be a past participle as well.
Watch for two things when trying to spot passive voice. First, some constructions that appear passive really just involve a past-participial adjective: He was embarrassed. Now, if you make that He was embarrassed by Jane, then it is passive (because embarrassed then functions as a verb); but withembarrassed alone at the end, it’s just a participial adjective. That’s a subtle point to some, but experts will recognize it. Second, the be-verb may not actually appear in the sentence. It may be what grammarians call an “understood” word, as in the amount charged will vary (the full sense of the phrase is that is charged) or the fee set by the trustees (the complete relative clause is that is set). These constructions with implied be-verbs are indeed passive.
What’s wrong with passive voice? Stylists agree that it’s generally weaker than active voice. It requires two extra words, and the subject of the sentence isn’t performing the action of the verb—you’re backing into the sentence with the recipient of the action. And the actor either is identified in a prepositional phrase or is missing altogether.
Politicians are often said to love passive voice because they don’t have to fess up to anything: they can just say, “Mistakes were made.” Notice that I used it in the preceding sentence (are said) so I didn’t have to personally smear politicians: I didn’t say it, but some unspecified accusers have said it.
The usual advice that people remember about passive voice is overdrawn: there’s no absolute prohibition, only a strong presumption against it. Passive voice does have its place. The recipient of the action may be more important than the actor (e.g., the defendant was convicted) or the actor may be unknown (e.g., the building was vandalized). And sometimes passive voice simply sounds better. It may be handy, for example, to move a punch word to the end of a sentence for impact (e.g., our client’s bail has been revoked).
Now back to that challenge passage. How many passive-voice verbs are in the passage quoted earlier? There are six: (1) to be met, (2) paid, (3) is required, (4) received, (5) were explained, and (6) be provided. If you found four, you know the basics of passive. If you spotted the others (#2 and #4), take some extra credit: they have understood be-verbs, to be paid and that are received.
Now consider the passage revised. I’ve stripped out the zombie nouns, changed passive-voice constructions to active, and slightly reorganized the ideas:
In Reich v. Chez Robert, Inc., the court found that § 203(m) requires an employer to meet three conditions before reducing the employee’s tip credit. First, the employer must inform each employee that the law imposes a minimum wage. Second, the employer must say what that wage is. It isn’t enough for the restaurant to assert vaguely that it has complied with either requirement; the court will require clear testimony about specific conversations in which the employer explained the Act. Third, the employee must actually keep the tips.
Once the zombie nouns and passive-voice constructions are gone, the reader’s job gets easier. Without necessarily knowing why, readers will have a better impression of the writer.
If you want to be a good writer, you must know how to handle sentence parts. Although you can acquire this knowledge only through hard work and constant vigilance, knowing about the two pitfalls discussed here will take you a long way.
Vol. 42 No. 9