(a) Right preserved. The right to trial by jury shall be as heretofore.
Rule 38.Jury trial of right
Part VI: Trials · Last amended January 1, 1991 · Last verified July 28, 2026
In one sentenceRule 38 preserves the right to jury trial as it existed before these rules, requires a written demand within 10 days after service of the last pleading raising a triable issue, and sets Delaware's default jury at 6 members unless a party demands and secures a jury of 12.
Full Text of Rule 38
(b) Demand. Any party may demand a trial by jury of an issued triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party.
(bb) Demand for jury on pleadings: Where. Where a demand for a trial by jury in endorsed on a pleading, as provided in Rule 38(b) of these Rules, it shall be typed or written on the first page of the pleading, immediately following the caption of the case.
(c) Same: Specification of issues. In the demand a party may specify the issues which the party wishes so tried; otherwise, the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the Court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.
(d) Demand for a jury of 12. In the demand for a trial by jury a party may further specify that the party demands trial by a jury of 12 persons; otherwise, the party shall be deemed to have consented to trial by a jury of 6 persons. A demand for trial by a jury of 12 persons shall be deemed to apply to all triable issues for which any party demands trial by jury as provided in Rules 38(b) and (c) of these Rules. If a party in the demand for trial by jury does not demand trial by jury of 12 persons, any other party within 10 days after service of the demand for trial by jury or within such lesser time as the Court may order, may serve a demand for trial by a jury of 12 persons.
(e) Waiver. The failure of a party to serve a demand for trial by jury as required by this Rule and to file it as required by Rule 5(d) constitutes a waiver by the party of trial by jury. The failure of a party to demand trial by a jury of 12 persons as required by this Rule and to file it as required by Rule 5(d) likewise constitutes a waiver by the party of the right to a jury of 12 persons. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties. Withdrawal of a demand for trial by a jury of 12 persons shall be governed by Rule 48 of these Rules.
Amendment History
Amended, effective May 1, 1972; Jan. 1, 1991.
Plain-English Summary
Rule 38(a) keeps the jury-trial right exactly where it stood before these rules took effect. Rule 38(b) puts the burden on the party who wants a jury: serve a written demand on the other parties any time after the action starts, but no later than 10 days after service of the last pleading that raises the issue a party wants tried by jury. A demand can ride along on a pleading itself instead of being filed as its own paper, and a separate subsection, Rule 38(bb), fixes exactly where that endorsement has to go: typed or written on the first page of the pleading, immediately following the caption of the case.
A party demanding a jury can name the specific issues to try that way, or say nothing and get a jury trial on every triable issue in the case. Demand only some issues, and any other party gets 10 days after service of that demand (or less, if the Court sets a shorter period) to demand a jury on the remaining issues.
Rule 38(d) sets Delaware's baseline jury size at 6, not 12 — a party has to affirmatively demand 12 to get one, and that demand carries over to every jury-triable issue any party has raised. If nobody asks for 12, any other party still gets 10 days after service of the jury demand (or a shorter court-ordered period) to demand one.
Rule 38(e) makes the consequences plain: skip the deadline for demanding a jury at all, or file it but not serve and file it as Rule 5(d) requires, and the right is waived. The same goes for a 12-person jury — miss the deadline and you're held to 6. Once made, a jury demand can't be withdrawn without the consent of the parties, and withdrawing a demand for a 12-person jury specifically follows Rule 48.
Frequently Asked Questions
How do I demand a jury trial in a Delaware Superior Court civil case?
Rule 38(b) requires a written demand served on the other parties, made any time after the action commences but no later than 10 days after service of the last pleading that raises the issue to be tried by jury. If the demand is endorsed on a pleading instead of filed separately, Rule 38(bb) requires it to appear on the pleading's first page, immediately following the caption.
What happens if I miss the deadline to demand a jury trial?
Rule 38(e) treats a missed demand, or a demand that isn't served and filed under Rule 5(d), as a waiver of the right to a jury trial on that issue.
Is a Delaware civil jury 12 people or 6?
Rule 38(d) sets 6 as the default. A party gets a 12-person jury only by demanding one; if nobody demands 12 in time, the case proceeds with 6 jurors.
Can I demand a jury trial on only some issues in my case?
Yes. Rule 38(c) lets a party specify the issues it wants tried by jury. Silence in the demand means the party is deemed to want a jury trial on every triable issue.
Can I withdraw a jury demand once I've made it?
Only with the consent of the parties. Rule 38(e) states a jury demand can't be withdrawn unilaterally, and withdrawing a demand specifically for a 12-person jury is governed by Rule 48.
Source & verification. Rule text is reproduced verbatim from the
Delaware Rules of Civil Procedure for the Superior Court, adopted by the
Superior Court of the State of Delaware. Last verified July 28, 2026.
· Official source
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