Last amended January 1, 2019 · Last verified July 1, 2026
In one sentenceRule 39 spells out what happens once the jury-trial question under Rule 38 is settled: the case goes to a jury unless waived, and the court may still empanel an advisory jury or, by consent, a binding one on issues that were never triable of right.
aIf no waiver is effected. If there is no waiver of the right to trial by jury under Rule 38(b), the trial must be by jury unless the court, on motion or on its own, finds that there is no right to a jury trial on some or all issues.
bIf a waiver is effected. If the parties waive the right to trial by jury under Rule 38(b), the court must try all issues.
cIf a limited waiver is effected. If the parties’ waiver to trial by jury under Rule 38(b) specifies certain issues to be tried by a jury, the trial must be by jury on those issues unless the court, on motion or on its own, finds that there is no right to a jury trial on some or all of those issues.
dAdvisory jury; jury trial by consent. In an action—or on any issue—not triable of right by a jury, the court, on motion or on its own:
1may try any issue with an advisory jury; or
2may, with the parties’ consent, order a jury trial on any issue, and the verdict will have the same effect as if a jury trial had been held as a matter of right.
Amendment History
Promulgated by R-16-0010, effective January 1, 2017; amended by R-18-0018, effective January 1, 2019.
Plain-English Summary
Rule 39 picks up where Rule 38 leaves off. If there was no waiver, the case is tried to a jury unless the court finds that no right to a jury trial exists on some or all of the issues. If the parties did waive the right under Rule 38(b), the court tries every issue itself. And if the waiver covered only certain issues, those specified issues still go to a jury, again subject to the court's own finding about whether a jury right applies to them.
For issues that were never entitled to a jury in the first place — equitable claims, for example — Rule 39(d) gives the court two additional options. It may empanel an advisory jury on its own or on motion, whose verdict guides but does not bind the court, or, with the parties' consent, it may hold an actual jury trial on the issue, in which case the verdict carries the same effect as one reached in a case triable of right.
Frequently Asked Questions
What happens if nobody waives the right to a jury trial?
The case is tried by jury, unless the court determines that there is in fact no right to a jury trial on some or all of the issues involved.
What is an advisory jury?
A jury the court convenes on an issue that is not triable of right by a jury. The advisory jury's verdict informs the court's decision but does not bind it, unlike a verdict in a case where the jury right applies.
Can the parties agree to a binding jury verdict on an issue that would not normally go to a jury?
Yes. With the parties' consent, the court may hold a jury trial on such an issue, and the resulting verdict has the same effect as if the jury trial had been held as a matter of right.
Source & verification. The rule text and History are reproduced verbatim from the
official Arizona Rules of Civil Procedure (Ariz. R. Civ. P. 39). Prescribed by the Supreme Court of Arizona (Ariz. Const. art. 6, § 5). The plain-English summary is original and written by us. Last verified July 1, 2026. ·
Official source