(A) Causes triable by court and by jury. Issues of law and issues of fact in causes that prior to the eighteenth day of June, 1852, were of exclusive equitable jurisdiction shall be tried by the court; issues of fact in all other causes shall be triable as the same are now triable. In case of the joinder of causes of action or defenses which, prior to said date, were of exclusive equitable jurisdiction with causes of action or defenses which, prior to said date, were designated as actions at law and triable by jury--the former shall be triable by the court, and the latter by a jury, unless waived; the trial of both may be at the same time or at different times, as the court may direct.
Rule 38.Jury Trial of Right
Current through July 1, 2026 · Last verified July 13, 2026
In one sentenceRule 38 preserves Indiana’s constitutional right to a civil jury trial for claims that were triable by jury before June 18, 1852, and requires a party to demand a jury in writing within ten days of the first responsive pleading or lose the right.
Full Text of Rule 38
(B) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by filing with the court and serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than ten (10) days after the first responsive plead- ing to the complaint, or to a counterclaim, crossclaim or other claim if one properly is pleaded; and if no responsive pleading is filed or required, within ten (10) days after the time such pleading otherwise would have been required. Such demand is sufficient if indorsed upon a pleading of a party filed within such time.
(C) Same: Specification of issues. In his demand a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have demanded trial by jury for all issues triable as of right by jury. Any other party must file a demand for jury trial to preserve his right to trial by jury:
(1) of issues for which a right to trial by jury was not requested by another party; and
(2) in case a request by another party was improper. But if a proper request for a trial by jury upon issues triable by jury as of right on his behalf is made by any party, such request shall be deemed to have been made on behalf of all parties entitled to a jury trial upon such issues.
(D) Waiver. The failure of a party to appear at the trial, and the failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(E) constitute waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the other party or parties. The trial court shall not grant a demand for a trial by jury filed after the time fixed in T.R. 38
(B) has elapsed except upon the written agreement of all of the parties to the action, which agreement shall be filed with the court and made a part of the record. If such agreement is filed then the court may, in its discretion, grant a trial by jury in which event the grant of a trial by jury may not be withdrawn except by the agreement of all of the parties.
(E) Arbitration. Nothing in these rules shall deny the parties the right by contract or agreement to submit or to agree to submit controversies to arbitration made before or after commencement of an action thereon or deny the courts power to specifically enforce such agreements.
Amendment History
This rule’s current text took effect January 1, 2005. For the full history of earlier amendments and adoption orders, see the Indiana Office of Court Services.
Plain-English Summary
Rule 38 answers two separate questions: which cases get a jury at all, and how a party claims that right. Section A ties the answer to the first question to history. Indiana’s constitution guarantees the right to trial by jury in civil cases, and this rule pegs that guarantee to what was triable by jury at common law before June 18, 1852 — the date tied to Indiana’s current constitution. Claims that were, before that date, matters of exclusive equitable jurisdiction go to the court alone; everything else that was triable by jury back then stays triable by jury now. When a single lawsuit mixes both kinds of claims, the equitable piece goes to the judge and the legal piece goes to the jury, unless waived, and the court decides whether to try them together or apart.
Sections B and C cover how to claim the right once it exists. Any party can demand a jury trial in writing, filed with the court and served on the other parties, any time after the case begins and no later than ten days after the first response to the complaint, counterclaim, crossclaim, or other claim — or, if no response is required, within ten days of when one would have been due. The demand can ride along on a pleading filed within that window instead of standing alone. A party can narrow the demand to specific issues; leaving it unspecified means the party wants a jury on everything triable of right. That creates a trap for the other side: if one party’s demand is incomplete or improper, any other party who wants a jury on the issues left out has to file its own demand to protect that right, though a proper demand protects every party entitled to a jury on those same issues.
Sections D and E round out the rule. Missing the ten-day window, or failing to show up for trial, waives the right to a jury — and once made, a jury demand can’t be pulled back without every party’s consent. A court won’t grant a late demand unless every party agrees in writing and files that agreement with the court, and even then a jury granted that way can’t be taken away except by everyone’s agreement. Finally, Section E makes clear that none of this stops parties from agreeing, by contract, to arbitrate their dispute instead of using the court system at all, and it preserves the court’s power to enforce that kind of agreement.
Frequently Asked Questions
How does a party demand a jury trial in an Indiana civil case?
By filing a written demand with the court and serving it on the other parties, no later than ten days after the first responsive pleading to the claim. The demand can be a standalone filing or endorsed on a pleading filed within that window.
What happens if I miss the ten-day deadline to demand a jury?
You waive the right to a jury trial, unless every party in the case agrees in writing to allow a late demand and files that agreement with the court.
Does every civil case in Indiana get a jury trial if someone asks for one?
No. Rule 38 only guarantees a jury for issues that were triable by jury at common law before June 18, 1852. Claims that were, before that date, matters handled exclusively by courts of equity are tried by the judge alone, even if a party demands a jury.
If I demand a jury trial on some issues but not others, do I lose the right to a jury on the rest?
You can, which is why the rule lets any other party file its own demand to protect a jury trial on issues left out of, or improperly requested in, another party’s demand.
Can I withdraw my jury demand later if I change my mind?
Not on your own. Once made, a jury demand can only be withdrawn with the consent of the other parties in the case.
Does this rule apply to arbitration agreements?
Rule 38 doesn’t limit arbitration. Section E confirms parties can still agree by contract to arbitrate a dispute instead of trying it in court, and that courts retain the power to enforce that kind of agreement.
Why does Indiana’s jury trial rule refer to a date in 1852?
Indiana’s constitutional guarantee of a civil jury trial is read to preserve the right as it existed under common law before the current Indiana Constitution took effect. Rule 38 fixes that reference point at June 18, 1852.
Source & verification. The rule text is reproduced verbatim from the
official Indiana Rules of Trial Procedure (T.R. 38). Prescribed by the Supreme Court of Indiana, under its inherent constitutional rulemaking power (reaffirmed by Ind. Code 34-8-1-1 and 34-8-2-1); originally enacted by the Indiana General Assembly in 1969. The plain-English summary is original and written by us. Last verified July 13, 2026. ·
Official source
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