Delaware jury demand: you get six jurors unless you ask for twelve
Delaware procedure · Last verified August 17, 2026
Two things about a Delaware jury demand are easy to get wrong, and both are waivers by silence.
Demand a jury within ten days of the last pleading directed to the issue, or you have waived it.
Say you want twelve jurors, or "the party shall be deemed to have consented to trial by a jury of 6 persons."
The second catches people who did everything else right. Filing a timely demand that says nothing about size gets you six.
The size default
Del. Super. Ct. Civ. R. 38(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.
| Default | a jury of 6 |
| To get 12 | say so in the demand |
| A demand for 12 | applies to all triable issues any party has demanded |
| If the first demand is silent on size | any other party has 10 days to demand 12 |
That last limb is the safety net, and it runs both ways. If your opponent demands a jury without specifying twelve, you have ten days from service of their demand to ask for twelve yourself — and the Court may shorten that.
Rule 38(e) makes the waiver explicit: failing to demand twelve "likewise constitutes a waiver by the party of the right to a jury of 12 persons."
The ten days, and what starts them
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.
| Earliest | any time after commencement |
| Latest | 10 days after service of the last pleading directed to that issue |
| Form | in writing, served on the other parties — may be endorsed on a pleading |
The trigger is the last pleading directed to the issue, not the last pleading in the case. Where a counterclaim and reply follow the answer, the clock on the counterclaim's issues starts later than the clock on the complaint's.
Because ten days is under eleven, Rule 6(a) excludes intermediate weekends and holidays — so it is ten business days. See Delaware discovery deadlines for how Rule 6 counts.
Rule 38(bb) tells you exactly where an endorsed demand goes:
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.
First page, immediately after the caption. A demand buried in a prayer for relief or on a signature page does not follow the rule.
Demanding some issues, or all
Rule 38(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.
Here the default runs the other way from the size rule. Say nothing about issues and you have demanded a jury on all triable issues. Specify some, and your opponent gets ten days to add the rest.
So the two silences point in opposite directions: silence on issues is generous, silence on size is not.
Losing the right, and getting it back
Rule 38(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.
Two steps are required — serve the demand, and file it under Rule 5(d). Doing one without the other is a waiver.
Once made, a demand is not yours alone to abandon: "A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties." A co-party or opponent who was relying on your demand keeps the benefit of it.
Withdrawing a demand for twelve is governed separately, by Rule 48.
Who asks the questions
Rule 47(a) departs from the practice in many states:
Examination on voir dire. In jury trials, the Court alone shall examine all jurors on the Voir Dire unless it shall otherwise direct. When the Court examines, either attorney may request the Court to examine the jurors as to certain matters, and the Court may do so if in its opinion such matters are the proper subject of inquiry. Voir Dire examination of the jury panel concerning contact with prospective witnesses shall be freely granted. All questions proposed by an attorney to be used in Voir Dire examination shall be submitted in writing to the Court prior to commencement of the drawing of the jury.
| Who examines | the Court alone, unless it directs otherwise |
| Attorney questions | requested, and asked by the Court if proper |
| Must be | submitted in writing before the drawing begins |
| Freely granted | questions about contact with prospective witnesses |
There is no attorney-conducted voir dire as of right. Anything you want asked has to be written out and handed up before the drawing starts, and the decision to ask it is the Court's.
The one subject the rule singles out is contact with prospective witnesses, which "shall be freely granted".
Challenges
Rule 47(c): "Each party shall be entitled to 3 peremptory challenges." Several defendants or several plaintiffs may be treated as a single party for that purpose, or the Court may allow additional challenges exercised separately or jointly, and may grant more for good cause.
A request for additional challenges "shall be made before commencement of the drawing of the jury", or earlier if ordered.
Rule 47(b) allows up to 6 alternate jurors, with extra peremptories keyed to how many are impanelled:
| Alternates impanelled | Extra peremptory challenges per side |
|---|---|
| 1 or 2 | 1 |
| 3 or 4 | 2 |
| 5 or 6 | 3 |
Those additional challenges "may be used against an alternate juror only", and the ordinary challenges may not be used against an alternate. An alternate who does not replace anyone is discharged once the jury retires.
Special verdicts and interrogatories
Rule 49(a) lets the Court require a special verdict — written findings on each issue of fact — and carries a waiver of its own:
If in so doing the Court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury.
An issue left off the verdict form is waived unless you demand its submission before the jury retires. Reading the form carefully at that moment is the whole protection. On an issue omitted without demand, the Court may find it — and if it does not, it "shall be deemed to have made a finding in accord with the judgment on the special verdict."
Rule 49(b) covers a general verdict with written interrogatories, and sorts the outcomes:
| Verdict and answers harmonious | judgment entered under Rule 58 |
| Answers consistent with each other, one or more inconsistent with the verdict | judgment may be entered on the answers, notwithstanding the verdict — or the jury returned, or a new trial |
| Answers inconsistent with each other and with the verdict | judgment shall not be entered; the jury is returned or a new trial ordered |
The middle row is the one worth knowing: the answers can beat the general verdict.
Where this connects
If the case is on the mandatory arbitration track, "Any right of trial by jury shall be preserved inviolate" — but the route to trial is a demand for a trial de novo within twenty days of the arbitrator's order. See Delaware mandatory non-binding arbitration.
For the pleadings whose service starts the ten days, see responding to a Delaware complaint and the Delaware motion to dismiss. Note that a Rule 12 motion is not a pleading, so it does not start the jury clock.
After a verdict, see Delaware reargument — ten days for a new trial, five for reargument.
How Delaware compares
| Delaware | Federal | |
|---|---|---|
| Demand deadline | 10 days after the last pleading on the issue | 14 days |
| Default jury size | 6 | 6 to 12, as the court seats |
| Must ask for 12 | yes, or it is waived | — |
| Other party may upgrade to 12 | within 10 days | — |
| Silence on issues | demands all triable issues | same |
| Endorsement location prescribed | first page, after the caption | no |
| Voir dire conducted by | the Court alone | court or parties |
| Peremptory challenges | 3 per party | 3 per side |
A short checklist
- Diary ten days from the last pleading directed to the issue — not from the last pleading in the case.
- Say "twelve" in the demand. Silence gets you six.
- If the other side demanded a jury without specifying twelve, you have ten days to ask for twelve.
- Endorse it on the first page, immediately after the caption, if you are putting it on a pleading.
- Serve it and file it. Both are required, and missing either waives the jury.
- Submit any voir dire questions in writing before the drawing starts.
- Ask for extra peremptories before the drawing begins, if you want them.
- Read the special verdict form before the jury retires and demand any omitted issue.
Where these rules live
- Del. Super. Ct. Civ. R. 38 — Jury trial of right
- Del. Super. Ct. Civ. R. 47 — Jurors
- Del. Super. Ct. Civ. R. 49 — Special verdicts and interrogatories
- Del. Super. Ct. Civ. R. 6 — Time
This page explains what the rules say. It isn't legal advice.