Rule 39.Trial by Jury or by the Court

Last verified July 1, 2026

In one sentenceRule 39 explains what happens to a lawsuit’s facts when there is no jury, and how courts may still use a jury even when one is not required.

Full Text of Rule 39

Text sizeJump to: (39.01) (39.02) (39.04)

39.01 By Court Issues of fact not submitted to a jury as provided in Rule 38 shall be tried by the court.

39.02 Advisory Jury and Trial by Consent In all actions not triable of right by a jury, the court, upon motion or upon its own initiative, may try an issue with an advisory jury, or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. 39.03. Preliminary Instructions in Jury Trials After the jury has been impaneled and sworn, and before opening statements of counsel, the court may instruct the jury as to the respective claims of the parties and as to such other matters as will aid the jury in comprehending the trial procedure and sequence to be followed. Preliminary instructions may also embrace such matters as burden of proof and preponderance of evidence, the elements which the jury may consider in weighing testimony or determining credibility of witnesses, rules applicable to opinion evidence, and such other rules of law as the court may deem essential to the proper understanding of the evidence.

39.04 Opening Statements by Counsel Before any evidence is introduced, plaintiff may make an opening statement, whereupon any other party may make an opening statement or may reserve the same until that party’s case in chief is opened. Opening statements may be waived by any party to the action without affecting the right of any other party to make such an opening statement.

Plain-English Summary

Not every case ends up in front of a jury. Rule 39 covers what happens to the facts of a case once Rule 38 has sorted out whether a jury applies. If the facts are not sent to a jury, the judge decides them instead.

Even in cases where a jury trial is not a right, the court still has options. On its own initiative, or if a party asks, the court may bring in an advisory jury to help work through the facts. If both parties agree, the court can also order a full jury trial, and that jury’s verdict counts the same as if the jury trial had been required from the start.

The rule also addresses how a trial opens. After the jury is chosen and sworn in, and before the lawyers give their opening statements, the judge may give the jury some preliminary guidance. That can include explaining what each side claims, describing the burden of proof, explaining what “preponderance of the evidence” means, and covering other basic legal rules that help the jury follow the trial.

Once evidence starts, the plaintiff gets the first opening statement. Other parties can either give their own opening statement right away or wait until it is their turn to present their case. No one is forced to give an opening statement, and one party skipping it does not affect any other party’s right to make one.

Frequently Asked Questions

If a case does not qualify for a jury trial, who decides the facts?

The judge does. Rule 39 states that issues of fact not submitted to a jury under Rule 38 are tried by the court.

Can a judge use a jury even when the case does not require one?

Yes. The court can call in an advisory jury on its own or by motion, and if both parties agree, the court can order a binding jury trial even though one was not required.

Does the judge talk to the jury before the lawyers make their opening statements?

The judge may give preliminary instructions after the jury is sworn in and before opening statements, covering things like the parties’ claims, the burden of proof, and other basic rules to help the jury follow the trial.

Does the plaintiff always give the first opening statement?

Yes, the plaintiff may open first. Other parties can then give their opening statement right away or wait and give it when they begin presenting their own case.

Do all parties have to give an opening statement?

No. Any party can waive an opening statement, and doing so does not take away another party’s right to make one.

Source & verification. The rule text and Advisory Committee Comments are reproduced verbatim from the official Minnesota Rules of Civil Procedure (Minn. R. Civ. P. 39). Prescribed by the Supreme Court of Minnesota (Minn. Stat. § 480.051). The plain-English summary is original and written by us. Last verified July 1, 2026. · Official source

Also known as: bench trial ruleadvisory jurycourt trial