White v. Burke

While I concur in the result in this case, I cannot agree with the majority that, in the matter of instructions, there is no greater duty upon the court than upon the litigants. If the parties submit no proposed instructions, the duty is still upon the judge to "declare the law." Constitution of Washington, Art. IV, § 16.

While a careful preparation of proposed instructions by counsel is prudential, it should not be a requisite for adequate and proper instructions to a jury. It is the duty of counsel not satisfied with the instructions to point out with clarity and certainty wherein an instruction given is erroneous, or why additional instructions are necessary; but it should not be necessary for him to implement, by a proposed instruction, his exception to an instruction given or omitted. Trial judges are often greatly assisted by the submission of proposed instructions, but, when the majority says that the "burden" was upon the litigants "to propose instructions covering all questions submitted to the jury," it is attempting to place the "burden" in the wrong place. It is the duty and constitutional responsibility of the judge to "declare the law."