October 16, 2006

The passive in law

A friend who's in law school reports that concern about the passive voice surfaces every so often there.  In one context, the passive is (effectively) required, in another, prohibited.

In Evidence class, the professor recently pointed out that in summation to the jury, "The evidence has not been disputed" is fine, but "The defendant did not dispute the evidence" is prohibited by the rules, because the defendant's right to refuse to testify cannot be questioned.

Meanwhile, in Legal Writing classes, the professors insist on Avoid Passive for briefs and memos.  Here I see the long influential arm of Bryan Garner, whose The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed. 2004) and earlier books on legal writing come down hard on the passive voice (and restrictive relative which and sentence-initial linking however, among other things).

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Posted by Arnold Zwicky at October 16, 2006 12:41 PM