Group VI: Trials · Last amended March 1, 2011 · Last verified July 15, 2026
Rule 39 was amended, effective March 1, 2011. Rule 39 is derived from Fed.R.Civ.P. 39. Rule 39 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal
Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Rule 38 is about claiming the right to a jury; Rule 39 is about what happens next. Once a jury trial is demanded under Rule 38, Rule 39(a) requires the docket to label the case a jury action, and trial on every demanded issue must be by jury — with two exceptions. The parties or their attorneys can stipulate to a nonjury trial, either by filing a stipulation or stipulating on the record, or the court, on motion or its own initiative, can find that no right to a jury exists on some or all of the demanded issues.
Rule 39(b) covers the flip side: issues on which no jury trial was properly demanded go to the court to decide. Even there, the court retains discretion — on motion, it may order a jury trial on any issue for which a jury could have been demanded, even though nobody demanded one in time.
Rule 39(c) opens a third path for cases where no jury right exists at all. The court, on motion or its own initiative, may try any issue with an advisory jury — a jury whose verdict guides but does not bind the judge — or, with the parties' consent, try any issue before a jury whose verdict carries the same force as if a jury trial had been available as a matter of right. That consent option lets parties get the experience of a jury verdict even in a case, such as one sounding purely in equity, where the constitution and statutes do not otherwise guarantee one.
Yes. Rule 39(a)(1) lets the parties or their attorneys stipulate to a nonjury trial, either by filing a stipulation or stipulating on the record, even after a jury trial has been demanded.
Rule 39(b) sends those issues to the court to decide. The court can still order a jury trial on motion, on any issue for which a jury could have been demanded, even without a timely demand.
Yes. Rule 39(a)(2) lets the court, on motion or on its own, find that there is no right to a jury trial on some or all of the demanded issues, in which case the trial on those issues proceeds without a jury.
In an action not triable of right by a jury, the court may, on motion or its own initiative, try any issue before an advisory jury whose verdict guides the court's decision without binding it.
Yes. Rule 39(c)(2) lets the court, with the parties' consent, try any issue in such a case before a jury whose verdict has the same effect as if the case carried a jury trial right as a matter of law.