Rule 39.Trial by Jury or by the Court
Part VI. Trials · Last verified September 4, 2026
Full Text of Rule 39
Plain-English Summary
Rule 39 is three lines long, and two of the three subsections are deleted. Reading what is gone is the point of the rule.
The civil version of Rule 39 allocates cases between jury and bench trial once a jury has been demanded under Rule 38. In this ruleset Rule 38 is deleted — there is no jury trial of right in the proceedings Rule 1 governs — so the allocation machinery in 39(a) and 39(b) has nothing to operate on, and both are deleted too.
What survives is subsection (c). In all actions not triable of right by a jury, the court, except where otherwise provided by law, may upon motion frame issues of fact to be tried by a jury.
Three things follow from that sentence. It takes a motion — the court does not do this on its own under this rule. It is permissive, so framing the issues is discretionary. And it is expressly subject to any contrary provision of law, which is where a statutory right to a jury in a particular kind of proceeding would come in.
Because deleted rules keep their numbers in this compilation, Rules 47 through 50 — jurors, number of jurors, special verdicts, directed verdicts — are also absent. Rule 51(a) on argument survives, and Rule 52 governs findings by the court, which is how most of these cases are decided.
Frequently Asked Questions
Is there a right to a jury trial in the Probate and Family Court?
Not under these rules. Rule 38, jury trial of right, is deleted from this ruleset, as are Rules 47 through 50 on jurors and verdicts. Rule 39(c) allows the court, on motion, to frame issues of fact to be tried by a jury in actions not triable of right by a jury, except where otherwise provided by law.
How does a jury issue get framed?
On motion. Rule 39(c) says the court may upon motion frame issues of fact to be tried by a jury. It is discretionary and subject to any contrary provision of law.
Why are Rules 39(a) and 39(b) deleted?
They allocate cases between jury and bench trial after a jury demand under Rule 38, and Rule 38 is deleted from this ruleset, so there is nothing for them to operate on.
Who decides the facts in a domestic relations case?
The court, in the ordinary case. Rule 52 governs findings of fact and conclusions of law in actions tried on the facts without a jury, and Rule 53 provides for reference to a master.