Rule 39.Trial by Jury or by the Court

Last amended July 1, 2023 · Last verified July 1, 2026

In one sentenceRule 39 sends properly demanded issues to a jury unless the parties stipulate to a bench trial or the court finds no jury right exists, sends every other issue to the court -- with a discretionary advisory jury or agreed jury trial available -- and lets a party request that a bench trial be conducted by live video.

Full Text of Rule 39

Text sizeJump to: (A) (B) (C)

(A) By jury

When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist. The failure of a party or his attorney of record either to answer or appear for trial constitutes a waiver of trial by jury by such party and authorizes submission of all issues to the court.

(B) By the court

(1) Issues not demanded for trial by jury as provided in Civ.R. 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.

(2) No later than the deadline set in a case scheduling order or thirty days before a scheduled trial, a party may request that a trial to the court be conducted using live two-way video and audio conference technology. The requesting party shall indicate in the request whether any special accommodations are anticipated or required.

(3) Upon a party’s request under division (B)(2) of this rule, the court may, in its discretion, conduct the trial using live two-way video and audio conference technology. In deciding on the party’s request, the court shall consider the views of the parties, the anticipated probative value of the evidence, difficulty and expense of presenting witnesses by physical presence versus remote presence, convenience and efficiency for the parties to the case, and the nature and complexity of the issues to be tried. No trial shall be conducted remotely over the objection of a party to the case unless one of the parties is restricted in physical appearance due to one of the following circumstances, or for other good cause shown:

(a) Active duty in the United States military;

(b) Incarceration;

(d) Significant travel distance from court.

In all actions not triable of right by a jury (1) the court upon motion or on its own initiative may try any issue with an advisory jury or (2) the court, with the consent of both parties, may order a trial of any issue with a jury, whose verdict has the same effect as if trial by jury had been a matter of right.

End

Amendment History

Effective Date: July 1, 1970

Amended: July 1, 1971; July 1, 2023

Staff Note (July 1, 2023 Amendment)

A nonexclusive list of factors that courts and litigants may consider in regard to remote trials or hearings includes (1) the age and any disabilities or special needs of a witness that may affect the taking of testimony; (2) whether language translation will be required; (3) procedures available for handling exhibits or demonstrations; (4) arrangements for making and ruling on objections or for sidebar conferences within or outside the hearing of a witness appearing by remote presence; (5) limitations upon persons who may be present in the location where the witness testifies, assuring identification of all such persons prior to the testimony; and (6) whether any technological issues involving the video display or recording of the trial or hearing via remote presence may affect the ability to create a clear record of all testimony.

Plain-English Summary

Division (A) designates an action as a jury action once a jury has been properly demanded under Rule 38, and requires trial by jury on the demanded issues unless the parties stipulate in writing or on the record to a bench trial, or the court, on motion or its own initiative, finds that no right to a jury trial exists on some or all of those issues. A party or attorney's failure to answer or to appear for trial waives that party's right to a jury and lets the court decide every issue.

Division (B) sends issues not demanded for a jury to the court, though the court retains discretion to order a jury on any or all issues even without a timely demand. A 2023 addition lets a party ask, by the deadline in the case scheduling order or at least thirty days before trial, that a bench trial be conducted using live two-way video and audio technology; the court weighs the parties' views, the likely value of the evidence, the difficulty and expense of live versus remote witnesses, and the complexity of the issues, and it may not order a remote trial over a party's objection unless one side faces active military duty, incarceration, medical restrictions, a significant travel distance, or another good reason.

Division (C) lets the court, on its own motion or a party's motion, try an issue that has no jury right with an advisory jury whose verdict the court may accept or reject, or, with both parties' consent, try that issue with a jury whose verdict binds the parties as though a jury trial had been available as of right.

Frequently Asked Questions

Can a court order a jury trial even if no one demanded one?

Yes. Rule 39(B) lets the court, in its discretion, order a jury trial of any or all issues even where no timely demand was made.

What is an advisory jury?

A jury used in a case with no right to a jury trial, whose verdict the court may accept or reject. It differs from a jury trial by consent under Rule 39(C), where both parties agree the verdict will bind them.

Can a bench trial be held over live video?

A party may request it under Rule 39(B), and the court decides after weighing factors like the value of the evidence and the difficulty of live testimony, but the court can't order a remote trial over objection unless a party faces military duty, incarceration, medical restrictions, significant travel distance, or other good cause.

Source & verification. The rule text, Effective Date, Amended dates, and Staff Notes are reproduced verbatim from the official Ohio Rules of Civil Procedure (Ohio R. Civ. P. 39). Prescribed by the Supreme Court of Ohio (Ohio Constitution, Art. IV, § 5(B)). The plain-English summary is original and written by us. Last verified July 1, 2026. · Official source

Also known as: bench trialadvisory jurytrial by consentremote trial