Failure of a party to appear for trial, in person or through counsel, will be deemed by the court to constitute consent by that party to a trial without a jury.
Rule 38-II.Failure to Appear for Trial as Consent to Trial Without Jury
Group VI: Trials · Last amended 2017 · Last verified July 14, 2026
In one sentenceRule 38-II provides that if a party fails to appear for trial, either in person or through counsel, the court treats that absence as the party's consent to have the case tried without a jury.
Full Text of Rule 38-II
Comment
Stylistic changes were made to this rule to conform with the 2007 amendments to the Federal Rules of Civil Procedure.
Plain-English Summary
Rule 38-II is short, but it closes off a specific maneuver: using a jury demand to gum up a trial and then not showing up at all. If a party fails to appear for trial — whether personally or through an attorney — the court deems that absence a consent to proceed without a jury, regardless of any jury demand the absent party made earlier under Rule 38.
The rule keeps the case moving when one side disappears. Rather than forcing the court to track down an absent party or empanel a jury nobody is present to address, the remaining parties and the court can proceed to a bench trial. It works alongside Rule 39-I, which addresses what happens more broadly when a party fails to respond when a case is called for trial.
Frequently Asked Questions
What happens if I demanded a jury trial but then don't show up for trial in D.C. Superior Court?
Rule 38-II treats your failure to appear, whether in person or through counsel, as consent to have the case tried without a jury, even though you had demanded one.
Does it matter whether I'm absent in person if my attorney still shows up?
Yes. The rule refers to failing to appear either in person or through counsel, so if your attorney is present on your behalf, this rule's consent-to-nonjury-trial consequence would not be triggered by your own personal absence.
Does Rule 38-II override an earlier jury demand made under Rule 38?
Effectively, yes, for that trial. The rule deems the failure to appear as consent to a trial without a jury notwithstanding any demand previously made.
How does Rule 38-II relate to Rule 39-I?
Rule 39-I addresses the broader consequences when any party fails to respond when a case is called for trial, including possible dismissal or a finding on the merits. Rule 38-II addresses the narrower, jury-specific consequence of an absence — that it counts as consent to a bench trial.
Is there a way to avoid the consequence in Rule 38-II if I have a good reason for missing trial?
The rule text itself does not carve out excuses; it states that a failure to appear will be deemed consent to a nonjury trial. Any relief from that consequence would depend on the court's other authority over trial proceedings, not on an exception written into this rule.
Source & verification. Rule text and official Comments are
reproduced verbatim from the District of Columbia Superior Court Rules of Civil
Procedure, adopted by the Superior Court of the District of Columbia. Last verified July 14, 2026.
· Official source
Also known as: dc failure to appear for trial juryconsent to nonjury trial dc superior courtrule 38-ii dc civilmissed trial date jury waiver dc