Part VI: Trials · Last amended May 1, 1972 · Last verified July 28, 2026
In one sentenceRule 39 governs whether a case gets tried by a 12-person jury, a 6-person jury, or the Court alone, based on what Rule 38 already demanded, and lets the Court order a jury trial anyway, in its discretion, even where no party demanded one.
(a)By jury of 12. When trial by a jury of 12 persons has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action (12). The trial of all issues demanded for trial by jury by any party shall then be by a jury of 12 persons, 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 a right of trial by jury of some or all of those issues does not exist.
(aa)By jury of 6. When trial by a jury of 6 persons has been consented to as provided in Rule 38, the action shall be designated upon the docket as a jury action (6). The trial of all issues demanded for trial by jury shall be by a jury of 6 persons 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 or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist; but, notwithstanding the failure of a party to demand trial by a jury of 12 persons, the Court in its discretion upon motion may order a trial by a jury of 12 persons of all issues for which trial by jury has been demanded and a right of trial by jury exists.
(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, except in actions when a statute provides for trial without a jury, the Court, with the consent of both 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, effective May 1, 1972.
Plain-English Summary
Once a party demands a 12-person jury under Rule 38, Rule 39(a) has the case docketed as a "jury action (12)" and tried that way, unless the parties stipulate — in writing or on the record in open court — to a bench trial, or the Court finds that no right to a jury trial exists on some or all of the issues. Rule 39(aa) works the same way for a 6-person jury, docketed as a "jury action (6)," with the same two off-ramps. Even where nobody demanded a 12-person jury, the Court can still order one in its discretion on motion, for any issue where a jury right exists.
Rule 39(b) covers issues nobody demanded a jury for at all: the Court tries them without a jury, but retains discretion, on motion, to order a jury trial anyway even where a party never demanded one as of right.
Rule 39(c) reaches cases that were never jury-triable as of right in the first place. The Court can try any issue with an advisory jury on its own initiative or on motion. And except where a statute requires a bench trial, the Court and both parties can agree to a jury trial whose verdict binds the Court exactly as if the jury right had existed all along.
Frequently Asked Questions
What does it mean for a case to be docketed as a "jury action (12)" or "jury action (6)"?
Rule 39(a) and 39(aa) use these docket designations once a party has demanded a jury of 12 or consented to a jury of 6 under Rule 38, signaling how the case will be tried absent a stipulation to a bench trial or a court finding that no jury right exists.
Can the parties agree to skip a jury even after demanding one?
Yes. Rule 39(a) allows the parties or their attorneys of record to stipulate, in writing filed with the Court or orally in open court on the record, to trial by the Court without a jury.
If nobody demanded a jury, can the Court still order one?
Yes. Rule 39(b) gives the Court discretion, on motion, to order a jury trial of any or all issues even where no party demanded a jury as of right.
What is an advisory jury under Rule 39?
In actions not triable of right by jury, Rule 39(c) lets the Court try any issue with a jury whose verdict is advisory, not binding, on the Court's own initiative or on motion.
Can I get a binding jury verdict even in a case with no jury-trial right?
Rule 39(c) allows it if both parties consent, except in actions where a statute requires trial without a jury. A jury verdict reached that way has the same effect as if a jury trial had been available as of right.
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
Also known as:jury action 12 vs jury action 6delaware bench trial stipulationadvisory jury delaware superior courtcourt ordered jury trial discretiontrial by court without jury demand