Wayne C. Schiess recently commented on my Interview of Dr. George D. Gopen: WRITING FROM A LEGAL PERSPECTIVE (linked to from the (new) legal writer and Building Rapport). Dr. Gopen was kind enough to respond to these comments. (I have placed Schiess's comments in bold italics before Gopen's responses.)
Gopen writes . . .
Mr. Schiess –
I admire everyone who is passionate about the teaching of writing. Let me respond to your response.
Schiess: So does Dr. Gopen recommend the passive voice? The dry, deadening, lifeless passive voice that pervades legal writing?
This issue with the passive is, I think, of great importance to legal writing and any other kind of high-level professional writing. We seem to have bought into the judgment that the passive is, as you put it, “dry, deadening, and lifeless,” without considering carefully enough what happens when the passive is used. I’ve recently published a very short article on this in the trade journal called Law Practice. ("When to Use the Passive.” Law Practice, Vol. 32 #6, September, 2006, 50-2.)
When we use the passive, it results in our moving around the furniture of a sentence into different spots. My rather unusual approach to handling sentences advises that we regularly should place certain kinds of information in certain specific structural locations. This is based on the assumption (discovery? belief?) that most of the clues for the reader in the interpretive process come not from word choice but from structural location. In other words, as readers, we know where to look for what.
For example, we tend to read a sentence as being the story of whoever or whatever shows up as its grammatical subject. So “Smith battered Jones” is the story of Smith, and “Jones was battered by Smith” is the story of Jones. If you need to be telling the story of Jones, the passive is the easiest, sometimes best, sometimes only was to get Jones up front into the “whose story” position. That structural location is crucial to your readers seeing the sentence as you want them to see it. In comparison with the importance of that concern, worrying about “active vs. passive” seems almost frivolous. There are a number of similarly crucial problems in communication that can be solved best by the passive, several of which are covered in that short article I mentioned above.
Readers of an English sentence tend to give significantly greater emphasis to the material located at the sentence’s moment of full syntactic closure. Such closure is produced by a period, or by a properly used colon or semi-colon, but never by a comma. Sometimes the only way to achieve this structural placement is by using the passive. When that is the case, thank goodness we have the passive. I don’t think it is possible to write sophisticated, high-level intellectual; English without a skillful control of the passive. I’ve also recently published a short article on the “Stress position” – my name for that moment of full syntactic closure. (“Stress This
: How to Indicate to Your Reader the Most Important Words in a Sentence.” Law Practice, Vol, 32 #4, June, 2006, 50-2.)
There is no question in my mind, based on decades of consulting experience, that poor use of the Stress position is the single most pervasive and single most serious problem in legal writing today. ( I refer here only to English. Other languages have different reader expectations and therefore different problems.)
Schiess: I disagree. Shorter is almost always better.
“Shorter is always better.” I would agree that quite
often when a sentence has been improved, it has also been shortened;
but mere length means nothing by itself. I often used to shorten
sentences for my clients or students, only to discover that I had
seriously misunderstood their intentions. My revision was shorter and
tighter -- and wrong.