39.01 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 (a) the parties or their attorneys of record, by written stipulation filed with the court or by oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (b) 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 under the Constitution or statutes of the state of Tennessee.
Rule 39.Trial by Jury or by the Court
Last verified July 2, 2026
In one sentenceRule 39 sends every properly demanded issue to a jury unless the parties stipulate to a bench trial or the court finds no jury right exists, sends undemanded issues to the court while letting it order a jury trial anyway in its discretion, and preserves whatever authority a court had before the rules to empanel a purely advisory jury.
Full Text of Rule 39
39.02 By the Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury as to any issue with respect to which demand might have been made of right, the court in its discretion upon motion may order a trial by jury of any or all issues.
39.03 Advisory Jury. Nothing in this rule shall impair the right of a court to empanel an advisory jury as that right existed prior to the adoption of these rules.
Advisory Commission Comments
Plain-English Summary
Rule 39.01 follows through on a jury demand made under Rule 38: once made, the demanded issues go to a jury, and the case is docketed as a jury action. Two things can change that outcome — the parties stipulating, in writing or on the record in open court, to try the case to the court instead, or the court itself finding, on motion or on its own initiative, that no right to a jury trial exists under the Tennessee Constitution or its statutes on some or all of the demanded issues. Tennessee courts have not insisted on rigid adherence to the stipulation’s form: participating in a bench trial without objecting to the absence of a jury can itself function as a waiver, even without paperwork spelling it out.
Rule 39.02 covers the flip side — issues nobody demanded a jury for go to the court. But a missed demand is not always fatal: the court retains discretion, on motion, to order a jury trial anyway on any or all of those undemanded issues if doing so serves the interests of justice.
Rule 39.03 preserves a court’s pre-existing authority to empanel an advisory jury, whose verdict guides but does not bind the court. Because Tennessee’s statutory extension of the jury right into equity cases already makes those verdicts binding, true advisory juries have a narrow role in practice — they mainly come into play where no jury right, constitutional or statutory, exists at all. A jury that deadlocks cannot be converted into an advisory one instead; the rule preserves the advisory-jury device as a separate procedure, not a fallback for a jury that fails to reach a verdict.
Frequently Asked Questions
Can parties agree to skip a jury trial after a jury has already been demanded?
Yes. Rule 39.01 lets the parties stipulate to a bench trial instead, either in writing or on the record in open court, even after a jury has been properly demanded.
If I forget to demand a jury, is that trial over for good?
Not necessarily. Rule 39.02 lets the court, on motion, order a jury trial on issues nobody demanded one for, using its own discretion to decide whether that serves the interests of justice.
What is an advisory jury?
A jury whose verdict guides the court but does not bind it. Rule 39.03 preserves a court’s authority to empanel one, though in Tennessee that authority mainly matters where no jury right — constitutional or statutory — applies at all, since statutory equity juries already render binding verdicts.
Source & verification. The rule text and Advisory Commission Comments are reproduced verbatim from the
official Tennessee Rules of Civil Procedure (Tenn. R. Civ. P. 39). Prescribed by the Supreme Court of Tennessee (Tenn. Code Ann. §§ 16-3-402 to 16-3-407, 16-3-601). The plain-English summary is original and written by us. Last verified July 2, 2026. ·
Official source
Also known as: advisory jurybench trial stipulationwaiver of jury demand
Advisory Commission Comments.
39.01: Tennessee statutes governing trials by jury in chancery courts expressly recognize that certain types of issues are not triable by jury. See Tenn. Code Ann. § 21-1-103.
39.02: The provisions of this Rule are designed to give the trial court discretion to grant a jury trial even though timely demand has not been previously made, if the trial court deems it in the interest of justice to do so.