There are a few options with respect to synthesizing statutes. Which ones you use depends on the type of authority you are trying to synthesize, and which tools work best for you personally. Sometimes it’s helpful to use them all, especially when you are new to synthesizing. The ones we will look at are 5W and 1H (who, what, when, where, why how), and the Statutory Elements approach. Each has advantages and disadvantages, depending on the type of statute you are synthesizing, the complexity of the statute and the complexity of the client’s facts.
5W + 1H Approach
This is one of the most basic tools. What does the statute tell us with respect to who, what, when, where, why, and how it applies? These are the “facts” or requirements of the statute. Each factor or requirement must be met for the statute to apply, so it’s important to include every word in the statutes in your 5W + 1H analysis. It's helpful to copy the statute into a document and then cross out each word as you put it into your 5W + 1H.
When using 5W + 1H, be very careful when dealing with statutes that have:
- “or” requirements – in other words, only one item out of the list must be proven
- Combinations of “or” and “and” requirements – only one item out of the first list of items must be proven, AND at least one other item must be proven
- References to other statutes as part of the requirements
- Exceptions to the general rule – usually indicated by “unless” or “except” or “this statute/section does not apply if”
Our arson statute is a criminal statute, and knowing the typical characteristics of criminal statutes is helpful. Most often, criminal statutes are not specific as to who, when, or where. In California, criminal statutes typically have “a person” or “any person” as the description of to whom it applies. Similarly, California criminal statutes are frequently silent as to when (which then means “any time”) and where (as long as it happens in California, this requirement is satisfied). Statutes usually are also silent regarding “why” they apply. Criminal statutes are more concerned with “what” actions are prohibited and “how” those actions must be undertaken. With that in mind, let’s take a look at our arson statute again:
Arson
California Penal Code section 451: A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.
Who = a person
What = the following actions are prohibited as criminal arson:
- sets fire to any structure, forest land, or property
- OR burns any structure, forest land, or property
- OR causes to be burned any structure, forest land, or property
- OR aids the burning of any structure, forest land, or property
- OR counsels the burning of any structure, forest land, or property
- OR procures the burning of any structure, forest land, or property
When = at any time
Where = in California
Why = because the statute says so
How = the action of setting the fire or using explosives must be done
- willfully AND
- maliciously
When a statute lists multiple ways to meet its requirements, it’s important to highlight those differences. Every word matters and each circumstance must be fully and separately analyzed.
Synthesizing this statute requires reference to a different statute that defines some of the terms found in Penal Code section 451. Under Penal Code section 450:
(a) “Structure” means any building, or commercial or public tent, bridge, tunnel, or powerplant.
(b) “Forest land” means any brush covered land, cut-over land, forest, grasslands, or woods.
(c) “Property” means real property or personal property, other than a structure or forest land.
* * *
(e) “Maliciously” imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.
Here is a helpful worksheet you to use with the 5W + 1H statutory synthesis method.
COMPLETE CITATION OF STATUTE: Pen. Code, § 451
COMPLETE CITATION OF RELATED STATUTE: Pen. Code, § 450
| QUESTION |
STATUTORY REQUIREMENTS |
|
WHO:
|
a person
|
|
WHAT:
|
sets fire to any structure, forest land, or property
OR burns any structure, forest land, or property
OR causes to be burned any structure, forest land, or property
OR aids the burning of any structure, forest land, or property
OR counsels the burning of any structure, forest land, or property
OR procures the burning of any structure, forest land, or property
|
|
WHEN:
|
any time
|
|
WHERE:
|
in California
|
|
WHY:
|
because the statute says so
|
|
HOW:
|
the action must be willful
AND
malicious, meaning "imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law"
|
|
EXCEPTIONS?
|
There are no “unless” or “except” statements in the statute
|
One advantage to using this approach is that it’s very easy to put in your client’s facts and see how the statute’s requirements are or are not met. When adding the client’s facts, be very detailed! It’s better to put in facts that might not quite matter than to leave any out. You may also find that some client facts overlap or are repeated in more than one category of 5W + 1H. That’s perfectly fine! Again, that overlap or repetition results in a deeper, more detailed synthesis that will serve you well when you are ready to do macro-synthesis of the statute and other legal authorities – and even more so when you are ready to begin writing your legal research memorandum. When performing analysis and synthesis, more detail is always better.
Here is an example of how this worksheet might be completed with Mr. Wonka’s facts.
COMPLETE CITATION OF STATUTE: Pen. Code, § 451
COMPLETE CITATION OF RELATED STATUTE: Pen. Code, § 450
| QUESTION |
STATUTORY REQUIREMENTS |
CLIENT’S (Willy Wonka’s) FACTS |
|
WHO:
|
a person
|
Wonka is a person
|
|
WHAT:
|
sets fire to any structure, forest land, or property
OR burns any structure, forest land, or property
OR causes to be burned any structure, forest land, or property
OR aids the burning of any structure, forest land, or property
OR counsels the burning of any structure, forest land, or property
OR procures the burning of any structure, forest land, or property
|
A fire was set and the Chocolate Factory was damaged ($1 million);
The Chocolate Factory is a structure
Wonka may be suspected of burning or causing to burn the structure
Wonka may be suspected of procuring, counsling, or aiding in the burning of the factory
|
|
WHEN:
|
any time
|
January 30, 1 a.m.
|
|
WHERE:
|
in California
|
Fire occurred in Santa Ana, California
|
|
WHY:
|
because the statute says so
|
n/a
|
|
HOW:
|
the action must be willful
AND
malicious, meaning "imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law"
|
Wonka dancing in the street in front of the house
Wonka wearing camouflage clothing
Wonka repeatedly shouting, “Burn baby burn!”
|
|
EXCEPTIONS?
|
There are no “unless” or “except” statements in the statute
|
n/a
|
