Case Briefing: The Four Step Process

Step Three: Flesh Out the Law Using a Gouge (or Other Support Material)

    This step asks us to use our support materials in order to flesh out the law surrounding Farwell. 
    To flesh out the law using a gouge (Emanuels or Gilberts), you would look up the case name in the Gouge list of cases at the back of the book, then turn to the corresponding page.  For our case you would look up Farwell v. Keaton and be referred to Emanuels p. 213 (the case description begins on p. 212). 
    Sometimes the case will not be listed in the index of cases.  This is not a problem.  It only means that the commercial outline authors chose another case to illustrate the point of law.  So instead of looking up by case, you would look up by topic.  In our situation, you would look for "duty" and end up in the same section.
    The beauty of gouges is that the facts are culled for you, as is the rule of law, and the case is put into context.
    If you had the Emanuels outline you would see that the pages in and around the Farwell case describe the law in the area of duty.  The general rule is that defendant's are not liable for refusing to assist.  But there are several exceptions.  One exception is if the defendant and victim are co-venturers, in which case there is a duty to assist if assistance can be provided safely.  Another exception is called assumption of duty (sound familiar?).  The rule in that exception is that once a defendant voluntarily begins to assist, the defendant must do so reasonably.
    So now we've found out that the Farwell case is not the general rule, but one of several exceptions.  We've also learned what the general rule is and what the various exceptions are.
    Also I should note that the Emanuels gouge refers to the fact that "some courts" abide by the co-venturer rule.  You will need to know for the exam that the rule does not apply in every court.  What we've just done then is "fleshed" out the law concerning duty in the subject of Torts.  If you were actually briefing a case for class you would also peruse the Casenotes brief to see how your CBFS, the Emanuels layout, and the Casenote’s brief, handle the Farwell case.  By studying all three you’d begin to develop a sense of how this area of law should be structured.
    Take a look at this copy of Gilberts Law Summaries, Torts, (use the "Sections" box in the lower left and the arrows to the right of the body text) to get a feel for a gouge’s layout and appearance.