Rule 39.Trial by jury or by the court

Title VI: Alternative Dispute Resolution and Trial · Last amended July 1, 2016 · Last verified July 14, 2026

In one sentenceRule 39 tells the court how to proceed once a jury trial has been properly demanded under Rule 38, sends undemanded issues to the court instead, and lets the court still empanel an advisory or consent jury when no right to one exists.

Full Text of Rule 39

Text sizeJump to: (a) (b) (c)

(a) When a demand is made. When a jury trial has been demanded under Rule 38, the action must be designated on the register of actions as a jury action. The trial on all issues so demanded must be by jury, unless:

(1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or

(2) the court on motion or on its own finds that on some or all of those issues there is no right to a jury trial.

(b) When no demand is made. Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.

(c) Advisory jury; Jury trial by consent. In an action not triable of right by a jury, the court, on motion or on its own:

(1) may try any issue with an advisory jury; or

(2) may, with the parties' consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right.

Amendment History

(Adopted March 1, 2016, effective July 1, 2016.)

Plain-English Summary

Once a jury trial is properly demanded under Rule 38, Rule 39 requires the case to be marked as a jury action on the register, and every issue covered by that demand goes to the jury — unless the parties stipulate to a nonjury trial, on the record or in writing, or the court itself decides, on motion or on its own, that some or all of those issues don't carry a right to a jury. Where no jury demand was properly made at all, the matching issues go to the court to decide, though even then the court retains discretion to order a jury trial on motion for any issue a party could have demanded a jury on in the first place.

Rule 39(c) covers cases that never had a jury-trial right to begin with. There, the court can still bring in a jury for guidance, empaneling an advisory jury on any issue, on its own initiative or on motion. Going a step further, if the parties consent, the court can hold a full jury trial on an issue with no inherent right to one, and that jury's verdict counts the same as if the right had existed from the start.

Frequently Asked Questions

What happens once a party has properly demanded a jury trial?

The case gets marked as a jury action on the register, and every demanded issue goes to the jury, unless the parties stipulate to a nonjury trial or the court finds, on motion or on its own, that there's no right to a jury on some or all of those issues.

Can the court decide there's no right to a jury even after a proper demand is made?

Yes. Rule 39(a)(2) lets the court make that finding on its own motion or on a party's motion, removing an issue from the jury even though a demand covered it.

If nobody demands a jury, is the case automatically decided by the judge?

The issues not properly demanded go to the court by default, but Rule 39(b) still lets the court order a jury trial on motion for any issue that could have been demanded, even after the deadline passed.

What is an advisory jury, and when does a court use one?

An advisory jury hears an issue in a case that carries no right to a jury trial, giving the judge input without binding the outcome. Rule 39(c)(1) lets the court call one in on its own or on motion, in any case not triable of right by a jury.

Can the parties agree to a binding jury trial in a case that wouldn't otherwise get one?

Yes. Rule 39(c)(2) lets the court, with the parties' consent, hold a jury trial on an issue with no inherent jury-trial right, and treat the verdict as binding, the same as if the right had existed all along.

Source & verification. Rule text are reproduced verbatim from the Idaho Rules of Civil Procedure, adopted by the Supreme Court of Idaho. Last verified July 14, 2026. · Official source

Also known as: advisory jurytrial by jury or by courtjury trial by consentno jury demand madebench trial Idaho