(a) By jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, 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 that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States or the State.
Rule 39.Trial by Jury or by the Court.
Last verified July 3, 2026
In one sentenceRule 39 says what happens once a jury has (or hasn't) been demanded: which issues go to the jury, which go to the judge, and when the court can use an advisory jury.
Full Text of Rule 39
(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. The court, with the consent of the parties, may order a trial with a jury whose verdict shall have the same effect as if trial by jury had been a matter of right.
Plain-English Summary
Once a party has properly demanded a jury under Rule 38, the case is docketed as a jury action and every demanded issue goes to the jury, unless the parties stipulate to a bench trial or the court finds no jury-trial right exists for those issues under the constitution or a statute. Issues nobody demanded for jury trial go to the court instead, though the court has discretion to order a jury on any or all issues even without a proper demand.
In cases with no right to a jury at all, the court may still try any issue with an advisory jury on its own initiative or on motion, gathering the jury's input without being bound by it. If the parties consent, the court can go further and order that the jury's verdict count as if a jury trial had been a matter of right from the start.
Frequently Asked Questions
What happens to issues nobody demanded a jury for?
Under Rule 39(b), those issues are tried by the court, although the court retains discretion to order a jury trial on them anyway.
Can a court use a jury even when there's no right to one?
Yes. Rule 39(c) lets the court try any issue with an advisory jury, and with the parties' consent, treat that jury's verdict as binding as if it had been a matter of right.
Source & verification. The rule text and History are reproduced verbatim from the
official Hawaii Rules of Civil Procedure (Haw. R. Civ. P. 39). Prescribed by the Supreme Court of Hawaii (Haw. Rev. Stat. § 602-11; Haw. Const. art. VI, § 7). The plain-English summary is original and written by us. Last verified July 3, 2026. ·
Official source
Also known as: jury trial by courtadvisory jurybench trial stipulation