Concepts, Rules, and Flow

In October, the U.S. Court of Appeals for the Eleventh Circuit gathered in Atlanta to hear several cases. All law clerks attended training at the same time. Because we are essentially judicial ghostwriters, the Court gave us writing training as well. By this point, after years of schooling, we've sat through too many training sessions to count. Avoid adverbs! Be concise! And, yes, avoid passive voice. All things that writing teachers focused on since high school. So I walked into this latest training session with low expectations. I was blown away. The legal writing professor, a grumpy old man by the name of Tim Terrell, focused on concepts, not rules. Why is it that, as a general rule, teachers tell us to avoid the passive voice, but they allow for some vague exceptions? Terrell said that the key concept at the paragraph level was flow. Basically, flow was about information. Each sentence ought to connect familiar information with new information. Very often, this will mean eliminating passive voice. But sometimes good flow will require passive voice.

For example, consider an abridged excerpt from the well-regarded dissent in Morrison v. Olson. First, a less flowy version, that eliminates an instance of passive voice:

"That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish. Frequently, the Court will face an issue of this sort clad, so to speak, in sheep’s clothing. But this wolf comes as a wolf."

Now, the more flowy original version, that has increased tolerance for passive voice (changes in bold):

"That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish. Frequently, an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing. But this wolf comes as a wolf."

Yes, this second version contains passive voice. But look how much more clearly "issue of this sort" refers to the separation-of-powers concern that the dissenting justice highlighted in the previous sentence. The second version flows better, because the information you learn at the end of one sentence launches you elegantly into the next. And the next offers the now-familiar information designed to catch and embrace you.

I don't know what relevance this particular concept has for creative writing. But I offer this extended legal writing lesson as something of an antidote to a surprising flaw of the writing toolbox that Stephen King introduces in On Writing. His anti-passive voice hyperventilation, (122-124), is emblematic of the larger problem. It was strange to see how much time he spent on what I thought were mundane and obvious writing rules that had been repeated to me since middle school. (Yes I see my passive voice there). It felt like he was simply rehashing Strunk & White. A great book. But I already own it. He needn't recall it for me.

I would have liked for him to go beyond these well-known rules. Give us reasoned concepts that needn't be applied without thought -- that contain within themselves both instruction for how to improve writing and explanation for why they do so.

King offered active voice with zealotry. Terrell offered flow with nuance. One I memorized. The other I learned.