Current through July 1, 2026 · Last verified July 13, 2026
In one sentenceTrial Rule 39 sets out when a demanded issue must go to a jury, how parties can agree instead to a bench trial, when a judge may call in an advisory jury, and how jury-trial rulings can be challenged on appeal without a formal objection.
(A)By jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated in the Chronological Case Summary as a jury action. Issues upon which a jury trial is so demanded shall be tried by jury, subject to the following exceptions:
(1)If the parties or their attorneys of record, by written stipulation filed with the court or by oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury upon any or all issues triable by jury as of right and so deman- ded, the court shall try those issues without a jury. The stipulation shall be effective only if filed or made in court before evidence is admitted at the trial or at such later time as the court, in its discretion, may allow.
(2)If a party demands a jury trial on any issue upon which he is entitled to jury trial as of right in the case, the court shall grant it on that issue.
(B)By the court--Advisory jury--Trial by consent. In any case where there are issues upon which a jury trial has not been demanded or has not properly been demanded or upon which there is no right to trial by jury as of right, the court may submit any or all of such issues to a jury for trial. The verdict shall be advisory unless, before the jury retires, the court, with the consent of both parties or their attorneys, orders that the verdict shall have the same effect as if a trial by jury had been a matter of right. Such order shall be granted at the court’s discretion, and all issues shall be tried as if subject to jury trial as a matter of right unless the parties’ consent is limited to fewer issues, or unless the court limits its order to fewer of those issues upon which consent has been given.
(C)Rulings of the court--Objections. In proceeding under Rules 38 and 39, error may be predicated upon the court’s ruling or action without motion or other objection by a party.
(D)Findings in case of advisory jury. Findings of fact shall not be required upon issues to the extent that the judge’s decision fol- lows the verdict of a properly selected advisory jury.
Amendment History
This rule’s current text took effect January 1, 2011. For the full history of earlier amendments and adoption orders, see the Indiana Office of Court Services.
Plain-English Summary
Rule 39(A) starts from a simple baseline: once a jury trial has been properly demanded under Rule 38, the case is marked as a jury action, and every issue covered by that demand goes to the jury. Two things can change that. First, the parties (or their lawyers) can agree to try some or all of those issues to the judge instead — either in a written stipulation filed with the court or an oral one made in open court and put on the record — but that agreement has to happen before evidence is admitted at trial, unless the court allows it later. Second, if a party has a genuine right to a jury trial on an issue and asks for it, the court has no choice but to grant a jury trial on that issue.
Rule 39(B) covers the opposite situation: issues where no jury was properly demanded, or where no party ever had a right to a jury in the first place. There, the judge decides alone by default, but the rule gives the court room to bring in a jury anyway to help sort out the facts. That jury’s verdict is only advisory — a sounding board for the judge — unless, before the jury retires to deliberate, both sides agree and the court orders that the verdict will count as if it came from a jury trial the parties were entitled to. The court can grant that order for all the issues submitted, or narrow it to fewer issues if that is as far as the parties’ consent (or the court’s own order) goes. Rule 39(C) removes a trap for the unwary: a party does not need to formally object every time the court rules on a jury-trial question under Rules 38 and 39 in order to preserve the issue for appeal. And Rule 39(D) ties back to the advisory-jury option — when the judge’s ultimate decision tracks what a properly chosen advisory jury recommended, the judge does not have to write separate findings of fact for those issues under Rule 52(A).
Frequently Asked Questions
What is an advisory jury, and how is it different from a regular jury?
An advisory jury is one the court brings in on issues where no party has a right to a jury trial, or where a jury trial was not properly demanded. Its verdict is not binding — the judge can accept it, reject it, or accept only part of it. It becomes binding only if, before the jury retires, both parties consent and the court orders that the verdict will carry the same weight as a jury trial had as of right.
Can the parties agree to skip a jury trial after one has been demanded?
Yes. Rule 39(A)(1) lets the parties or their attorneys withdraw the case (or specific issues) from the jury by written stipulation filed with the court, or by an oral stipulation made in open court and entered in the record. That agreement generally has to be made before evidence is admitted at trial, though the court can allow it later at its discretion.
Do I have to object every time the court rules against my jury demand to preserve the issue for appeal?
No. Rule 39(C) says error can be based on the court’s ruling or action under Rules 38 and 39 even without a motion or objection at the time. That said, cautious practice is still to raise an objection whenever silence could look like agreement to a bench trial.
Can a judge order a jury trial even though nobody demanded one?
Where no party has a right to a jury trial as of right, or a jury was not properly demanded, the court can still submit the issues to a jury under Rule 39(B), but that jury’s verdict is only advisory unless both parties consent to make it binding before the jury retires.
What happens if only some issues in my case carry a jury-trial right?
The jury decides the issues properly demanded and triable as of right, while the court can decide the remaining issues itself or submit them to the same or an advisory jury. The parties can also agree to limit which issues get a binding jury verdict rather than an advisory one.
Is an advisory jury’s verdict binding on the judge?
No, unless the parties and the court agreed in advance, before the jury retired, that it would be. Otherwise the judge weighs it like any other input and can rule differently.
How late can the parties agree to try a case without a jury after demanding one?
The stipulation must ordinarily be filed or made in open court before evidence is admitted at trial. Rule 39(A)(1) does let the court allow a later stipulation at its discretion, but that is not guaranteed.
Source & verification. The rule text is reproduced verbatim from the
official Indiana Rules of Trial Procedure (T.R. 39). 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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