A. ISSUES Issues arise upon the pleadings when a fact or conclusion of law is maintained by one party and controverted by the other.
Rule 51.Issues; Trial by Jury or by the Court
Current through June 1, 2026 · Last verified July 11, 2026
In one sentenceRule 51 sorts out which parts of a civil case a jury decides and which a judge decides, and it lets parties waive a jury trial or, in rare cases, still use one when no right to a jury exists.
Full Text of Rule 51
B. ISSUES OF LAW; HOW TRIED An issue of law shall be tried by the court.
C. ISSUES OF FACT; HOW TRIED The trial of all issues of fact 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 without a jury; or
(2) The court, upon motion of a party or on its own initiative, finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of this state.
D. ADVISORY JURY AND JURY TRIAL BY CONSENT In all actions not triable by right to a jury, the court, upon motion of a party or on its own initiative, may try an issue with an advisory jury or it may, with the consent of all parties, order a trial to a jury whose verdict shall have the same effect as if trial to a jury had been a matter of right.
Amendment History
[CCP 12/2/78] Library References Peterson, Missing from Oregon's Takings Clause: The Right to a Jury Trial of Compensation in Eminent Domain Proceedings, 85 Or. L. Rev. 1063 (2006). Steverson, Interspousal Tort Claims in a Divorce Action in Oregon, 31 Willamette L. Rev. 757 (1995). Merrill, The Oregon Rules of Civil Procedure -- History and Background, Basic Application, and the "Merger" of Law and Equity, 65 Or. L. Rev. 527 (1986) Cross References ORS 54.010 Trial jury in justice's court Or. Const. Art. I, § 17 Jury trial in civil cases OR. Const. Art. VII (Amended), § 3 Right of jury trial preserved in actions at law
Plain-English Summary
Rule 51 draws the line between issues a jury decides and issues a judge decides. An issue arises when the pleadings show one side asserting a fact or a legal conclusion and the other side disputing it — until then, there is nothing to try. Once an issue exists, the rule splits the work: issues of law always go to the judge, and issues of fact go to a jury unless one of two things happens. The parties can waive the jury by written stipulation filed with the court, or by an oral stipulation made in open court and entered in the record. Or the court itself, on a party’s motion or on its own, can find that no right to a jury trial exists for some or all of the issues under the Oregon Constitution or Oregon statutes.
Rule 51 also covers the two situations where a jury enters a case that would otherwise be tried to the court alone. The court can call in an advisory jury, on its own or on a party’s motion, whose verdict serves only as a recommendation the judge is free to follow or reject. Or, if every party agrees, the court can hold a jury trial even though no one had a right to demand one — and when that happens, the verdict binds the court exactly as it would if the jury trial had been guaranteed from the start.
Frequently Asked Questions
When does an issue arise under Rule 51?
An issue arises from the pleadings, when one party maintains a fact or a legal conclusion and the other party controverts it. Until the pleadings show that kind of disagreement, there is no issue for a judge or jury to try.
How can parties waive a jury trial in an Oregon civil case?
Two ways. The parties or their attorneys of record can file a written stipulation with the court, or they can make an oral stipulation in open court that gets entered in the record. Either way works, and once the waiver is on record, the issues of fact go to the judge instead of a jury.
What is an advisory jury?
In a case with no right to a jury trial, the court can still empanel a jury to hear the evidence and return a verdict, on its own initiative or on a party’s motion. That verdict is advisory only — the judge decides the case and can accept, reject, or depart from what the advisory jury recommends.
Can parties get a binding jury trial even when they have no right to one?
Yes. Under Rule 51 D, if every party consents, the court can order a jury trial with the same binding effect as if the right had existed from the start. The difference from an advisory jury is consent — an advisory jury needs none, but a binding jury trial by consent requires every party to agree.
Who decides if a right to a jury trial exists in a particular case?
The court does. Under Rule 51 C(2), a judge can find, on a party’s motion or on the court’s own initiative, that a right to a jury trial does not exist for some or all of the issues under the Oregon Constitution or Oregon statutes — and once the court makes that finding, those issues are tried to the judge.
Source & verification. The rule text is reproduced verbatim from the
official Oregon Rules of Civil Procedure (ORCP 51). Prescribed by the Council on Court Procedures (ORS 1.735), subject to amendment, repeal, or supplementation by the Oregon Legislative Assembly. The plain-English summary is original and written by us. Last verified July 11, 2026. ·
Official source
Also known as: jury trial vs bench trial oregonwaiving right to jury trial oregonadvisory jury oregonissues of law and fact oregon civil procedure