(a) By jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court, upon motion or of its own initiative, finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of this State.
Rule 39.Trial by Jury or by the Court
Last amended January 1, 1992 · Last verified July 13, 2026
In one sentenceRule 39 explains what happens after a jury has been demanded -- the case is docketed as a jury action unless the parties stipulate otherwise or the court finds no jury right exists -- and lets the court order or empanel an advisory jury even where no right to one exists.
Full Text of Rule 39
(b) By the Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion, upon motion, may order a trial by a jury of any or all issues.
(c) Advisory Jury and Trial by Consent. In all actions not triable of right by a jury, the court upon motion or of its own initiative, may try any issue with an advisory jury or, with the consent of all parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
Amendment History
Amended November 11, 1991, effective January 1, 1992.
Reporter's Notes
Reporter’s Notes to Rule 39: 1. With the exception of minor wording changes in Section (c), Rule 39 is otherwise identical to FRCP 39. The purpose behind this rule is to ensure that when a jury trial has been requested, it will be granted on all issues triable by jury unless the parties thereafter affirmatively waive this right. Under Section (b), the trial court retains discretion to grant a trial by jury even though timely request or demand has not been made.
2. Section (c) authorizes the trial court to submit any issue to an advisory jury where it would otherwise not be triable by jury or, with the consent of all parties, may order that the verdict of such jury shall be binding as if the issues were triable by jury as a matter of right. Superseded Ark. Stat. Ann. § 27-1705 (Repl. 1962) provided that all issues not triable by jury as a matter of right were to be tried by the court, subject to its power to order any issue to be tried by jury, whether at law or in equity. Thus, the trial courts in this State have previously had the inherent right to submit any issue to a jury. This rule would, however, limit the effect of a jury verdict under Section (c) unless all parties consent to a binding effect.
3. Under the circumstances outlined in Section (c), it is possible to have a binding jury verdict in equity proceedings. This is a change in Arkansas law as jury verdicts in chancery court have heretofore been considered as advisory only and not binding upon the court. Sullivan v. Wilson Mercantile Co., 172 Ark. 914, 290 S.W. 938 (1927); City of Magnolia v. Davies, 188 Ark. 19, 64 S.W.2d 85 (1933).
Plain-English Summary
Rule 39 picks up where Rule 38 leaves off. Once a party has properly demanded a jury under Rule 38, the case is docketed as a jury action, and every demanded issue goes to the jury unless one of two things happens: the parties stipulate, in writing or on the record in open court, to try the case to the court instead, or the court itself -- on motion or on its own -- finds that no right to a jury trial exists under the Arkansas Constitution or statutes for some or all of the demanded issues. That second option matters because a jury demand does not by itself settle whether the right exists; the court retains the power to test that question even after a demand is filed.
Issues nobody demanded a jury for go to the court under Rule 39(b). But the failure to demand does not close the door entirely: even where a party could have demanded a jury as of right and did not, the court retains discretion, on motion, to order a jury trial anyway. That discretion gives a trial judge a safety valve where a case would benefit from a jury despite a missed or incomplete demand.
Rule 39(c) covers the flip side -- issues that are not triable of right by a jury at all, typically equitable claims. The court can, on motion or on its own initiative, submit any such issue to an advisory jury, whose verdict guides but does not bind the court. Or, with the consent of every party, the court can order a jury for such an issue whose verdict carries the same binding effect as if the issue had been triable by jury as a matter of right. That consent-based option marks a real change from pre-rules Arkansas practice, when chancery court jury verdicts were understood to be advisory only; Rule 39(c) lets the parties opt into a binding verdict on an equitable issue if they choose to.
Frequently Asked Questions
What does it mean for a case to be docketed as a jury action under Rule 39?
It means that once a valid jury demand has been made under Rule 38, the case carries that designation on the court's docket and every demanded issue will be tried to a jury, unless the parties later stipulate to a bench trial or the court finds that no jury right exists for those issues.
Can the parties agree to skip a jury trial after already demanding one?
Yes. Rule 39(a)(1) allows the parties or their attorneys of record to stipulate, either in writing filed with the court or orally in open court and entered in the record, to try the case to the court instead of a jury, even after a jury has been demanded.
Can a court order a jury trial even though no party demanded one?
Yes, in its discretion. Rule 39(b) lets the trial court, on motion, order a jury trial of any or all issues even where a party failed to make a timely demand in a case where the right to demand one existed.
What is an advisory jury under Arkansas Rule 39?
For issues not triable of right by a jury -- typically equitable claims -- the court can submit the issue to a jury on its own initiative or on motion, purely to advise the court. The jury's verdict does not bind the judge, who remains the ultimate decision-maker on that issue.
Can an advisory jury's verdict become binding?
Yes, but only with the consent of every party. Rule 39(c) allows the court to order a jury trial on an otherwise non-jury issue whose verdict has the same binding effect as a verdict on an issue triable of right, provided all parties agree in advance.
Can a court decide that a demanded jury trial right does not exist?
Yes. Rule 39(a)(2) lets the court, on its own initiative or on motion, find that a right to jury trial on some or all of the demanded issues does not exist under the Arkansas Constitution or statutes, which removes those issues from the jury despite the demand.
Source & verification. Rule text, Reporter's Notes, and amendment
history are reproduced verbatim from the Arkansas Rules of Civil Procedure, prescribed by
the Arkansas Supreme Court. The plain-English summary is original and written by us.
Last verified July 13, 2026. ·
Official source
Also known as: advisory jury arkansasbench trial arkansasarkansas rule 39ARCP 39jury trial procedure arkansasstipulate bench trial arkansasjury action docket arkansas