(a) Right Preserved. The right of trial by jury as declared by the Constitution or any statute of the State of Mississippi shall be preserved to the parties inviolate.
Rule 38.Jury Trial of Right
Chapter VI: Trials · Not amended since adoption on record · Last verified July 14, 2026
In one sentenceRule 38 preserves the right to trial by jury as declared by the Mississippi Constitution or any state statute, and lets parties waive that right only through a specific written stipulation — one the court can override in its discretion.
Full Text of Rule 38
(b) Waiver of Jury Trial. Parties to an action may waive their rights to a jury trial by filing with the court a specific, written stipulation that the right has been waived and requesting that the action be tried by the court. The court may, in its discretion, require that the action be tried by a jury notwithstanding the stipulation of waiver.
Plain-English Summary
Rule 38 is short but foundational. Subsection (a) states the baseline: the right to trial by jury, wherever the Mississippi Constitution or a state statute grants it, is preserved to the parties inviolate. The rule does not itself create the right or define which cases carry it — that comes from the constitutional or statutory source — but it makes clear that the civil rules will not be read to erode that right once it exists.
Subsection (b) addresses how parties can give up a jury trial they are otherwise entitled to. Waiver takes a specific written stipulation filed with the court, stating that the right has been waived and asking that the case be tried by the court instead. Because the rule speaks of parties stipulating, waiver is framed as an agreement reached among those entitled to the jury right, not a notice one side can file unilaterally on the others' behalf.
Even a filed stipulation does not bind the court's hands. Rule 38(b) gives the court discretion to require that the case be tried by a jury anyway, notwithstanding the parties' waiver. That discretion reflects the weight the rule places on jury trial as a right belonging to the judicial system as well as to the litigants — a court can decide the case is better suited to a jury even when everyone at the table has agreed to skip one.
Frequently Asked Questions
Does Rule 38 itself create the right to a jury trial in Mississippi civil cases?
No. Rule 38(a) preserves the right to jury trial as it is declared by the Mississippi Constitution or by statute; it does not independently create or define which claims carry that right.
How do parties waive their right to a jury trial under Rule 38?
By filing a specific written stipulation with the court stating that the right has been waived and requesting that the case be tried by the court instead. A general or informal indication of preference is not enough under the rule's terms.
If everyone agrees to waive a jury, must the judge go along with it?
No. Rule 38(b) gives the court discretion to require a jury trial anyway, even after the parties have filed a stipulation waiving that right.
Where does the jury trial right that Rule 38 protects come from?
From the Mississippi Constitution or from a Mississippi statute. Rule 38(a) preserves whatever right those sources grant; it operates on top of that existing right rather than replacing it.
Can one party alone waive a jury trial without the other side agreeing?
Rule 38(b) frames waiver as an act of the parties through a joint written stipulation, which points to an agreement among those entitled to the right rather than a unilateral election by a single side.
Source & verification. Rule text and Advisory Committee Notes are
reproduced verbatim from the Mississippi Rules of Civil Procedure, adopted by the
Supreme Court of Mississippi. Last verified July 14, 2026.
· Official source
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