Rule 39.Trial by jury or by the court

Rule 39 picks up where Rule 38 leaves off. Once a jury trial has been properly demanded, the action is docketed as a jury action and all the demanded issues are tried by jury unless the parties stipulate, in writing or on the record in open court, to a bench trial, or the court finds, on motion or on its own, that no right to a jury trial exists on some or all of those issues under the Vermont Constitution or statutes. Issues no one demanded for jury trial go to the court instead, though the court may still order a jury trial of any or all such issues in its discretion, even where a party could have demanded one and failed to.

For cases with no right to a jury at all, Rule 39(c) lets the court try any issue with an advisory jury, or, with both parties' consent, hold a jury trial whose verdict carries the same binding effect as if a jury trial had been a matter of right. Where legal and equitable claims are joined in the same complaint, counterclaim, cross-claim, or third-party complaint, a party retains the right to a jury trial on the legal claim if properly demanded, and the court may order a joint trial with separate fact-finding by the jury and the court, or separate trials for the legal and equitable claims, whichever serves convenience or avoids prejudice.

Rule 39(e) addresses juror note-taking. Where the court permits it, each juror gets a pad and pen or pencil at the start of trial, and notes stay confidential to the jury and are never admissible for any purpose. Envelopes are provided so jurors can secure their notes during recesses, jurors may keep notes with them during deliberations, and after the verdict the clerk or a court officer collects and promptly destroys all the notes.