(-) Defined. A trial is the judicial examination of the issues between the parties, whether they are issues of law or of fact.
Rule 38.Jury trial of right
Group 6: Trials · Last amended April 28, 2015 · Last verified July 13, 2026
In one sentenceWashington's jury-trial rule preserves the constitutional right to a jury in civil cases and spells out how a party invokes it, through a timely written demand, a filing with the clerk, and payment of the jury fee, along with the default jury size and how issues may be limited.
Full Text of Rule 38
(a) Right of jury trial preserved. The right of trial by jury as declared by article 1, section 21 of the constitution or as given by a statute shall be preserved to the parties inviolate.
(b) Demand for jury. At or prior to the time the case is called to be set for trial, any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing, by filing the demand with the clerk, and by paying the jury fee required by law. If before the case is called to be set for trial no party serves or files a demand that the case be tried by a jury of 12, it shall be tried by a jury of 6 members with the concurrence of 5 being required to reach a verdict.
(c) Specification of issues. A party may specify the issues which the party wishes so tried in a demand; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If a party has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.
(d) Waiver of jury. The failure of a party to serve a demand as required by this rule, to file it as required by this rule, and to pay the jury fee required by law in accordance with this rule, constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
(e) Return of jury fee — When forfeited. [Rescinded by Supreme Court Order, adopted July 14, 1981, effective Aug. 7, 1987).]
Amendment History
Adopted May 5, 1967, amended June 28, 1967, effective July 1, 1967; amended, adopted Nov. 29, 1971, effective Jan. 1, 1972; amended, adopted July 20, 1973, effective July 20, 1973; amended, adopted July 14, 1981, effective Aug. 7, 1981; amended, effective April 28, 2015.
Plain-English Summary
Rule 38 starts from a constitutional premise: the right to a jury trial in a civil case belongs to the parties, and the court cannot take it away. But a right that goes unclaimed can lapse, so the rule builds in a procedure. Any party who wants a jury must ask for one, in writing, before the case is called to be set for trial. The demand goes to the other parties and gets filed with the clerk, and the jury fee set by statute has to be paid. Miss any one of those three steps and the right is waived for that case, no matter how strongly the constitution or a statute would otherwise have protected it.
The rule also controls jury size. If nobody asks for a jury of twelve before the case is set for trial, the default is a six-member jury, and only five of those six need to agree on a verdict. A party who wants the traditional twelve-person panel has to say so in the demand. A demanding party can also narrow the request to specific issues rather than the whole case; if the demand says nothing about which issues, the court treats it as a demand covering every triable issue. When one side asks for a jury on only part of the case, the other side gets ten days after service of that demand, or less if the court sets a shorter window, to demand a jury on the remaining issues.
Once made, a jury demand is not something a party can walk back alone. Withdrawing it takes the consent of every party in the case, which protects an opponent who may have relied on the demand and skipped making one of their own. A subsection dealing with the return of jury fees under certain conditions was rescinded by the state supreme court in 1981 and no longer has any effect.
Frequently Asked Questions
What happens if no party demands a jury before the case is set for trial?
The right to a jury trial is waived for that case. The case proceeds to a bench trial before the judge, and the parties cannot revive the jury right later by agreement alone unless the court exercises its own discretion under a related rule to order one.
How many jurors sit on a Washington superior court civil jury?
Six, unless a party demands a jury of twelve before the case is called to be set for trial. With the default six-member jury, only five jurors need to agree to reach a verdict.
Can a party limit a jury demand to only some issues in the case?
Yes. A demand may specify which issues the party wants tried to a jury. If it does not name specific issues, the demand is treated as covering every issue triable by jury. Any other party then has ten days after service of that demand, or a shorter period the court sets, to demand a jury on the remaining issues.
Once a party demands a jury, can that party change its mind and withdraw the demand?
Not alone. Withdrawing a jury demand requires the consent of the other parties in the case, since they may have relied on the demand when deciding not to make one of their own.
Does paying the jury fee matter as much as filing the written demand?
Yes. The rule treats service of the written demand, filing it with the clerk, and payment of the statutory jury fee as three separate requirements. Failing any one of them constitutes a waiver of the jury trial right.
Is there still a procedure for the return of jury fees under Rule 38?
No. The subsection addressing return of jury fees was rescinded by state supreme court order in 1981 and no longer appears in force.
Source & verification. Rule text and amendment history are
reproduced verbatim from the Washington Superior Court Civil Rules, adopted by the
Supreme Court of Washington. Last verified July 13, 2026. ·
Official source
Also known as: jury demand Washingtonright to jury trial civil casejury fee superior courtwaiver of jury trialsix person jury WashingtonCR 38