For as much as the legal-writing academy rails against the passive voice, few attorneys can distinguish a true passive construction from a false positive. (Don’t feel bad if you can’t, by the way, as some have accused even Strunk & White of getting it wrong.)
Even fewer attorneys are confident about when to leave a true passive construction as is.
What’s more, the most common justification for the passive—to hide bad facts—is less than it’s cracked up to be (and no, that “to be” is not passive). More often than not, this oft-touted technique yields defensive and nervous writing like “The gun was used by Defendant to induce death in Mr. Smith.” You might as well put “I’m disclosing a bad fact” in neon lights.
In working on my book for judges, I was struck by a paragraph that opens one of Judge Posner’s opinions. (Notice that I did NOT say, “A paragraph that opens one of Judge Posner’s opinions struck me.”) He uses the passive voice to great effect in the first four sentences of this paragraph:
First Sentence:
Questor Cecaj, who together with his wife is seeking asylum in the United States, was active in the Democratic Party of Albania at a time when the country was ruled by the Socialist Party.
Why the passive works here: to keep “country” close to “Albania.” Better flow.
Second Sentence:
Persecution of Democratic Party activists during this period has been found in a number of cases.
Why the passive works here: to keep “Democratic Party activists” closer to the previous sentence, which is about politics, not case law. Better flow.
Third Sentence:
In 1998, Cecaj—whom the immigration judge found wholly credible—was arrested following a political protest in which he had participated.
Why the passive works here: We don’t care who arrested him. Focus on what matters to the reader.
Fourth Sentence:
He was detained for six days and during that period was beaten by masked police with rubber truncheons and also kicked, suffering injuries that required his hospitalization.
Why the passive works here: For “was detained,” because we don’t care who detained him, either. For “was beaten,” we do care about who beat him, because it was the police, but Posner probably wanted to keep the subject “he” consistent throughout the sentence. And for the entire sentence, the passive works because Posner wants us to identify with Cecaj and not with the authorities.
To sum up, then, don’t use the passive voice to hide bad facts, a technique that often backfires. On the contrary, use the passive voice for the reader’s sake: to provide better flow, to keep the subject consistent throughout a sentence, and to help the reader focus on what truly matters.