(-) Issues — How tried. [Reserved. See RCW 4.40.010 through 4.40.070.]
Rule 39.Trial by jury or by the court
Group 6: Trials · Last amended July 9, 2024 · Last verified July 13, 2026
In one sentenceRule 39 explains how a case gets tried once issues are joined, distinguishing jury trials from bench trials, describing the court's power to convene an advisory jury, and setting procedures for holding all or part of a trial by remote means.
Full Text of Rule 39
(a) By jury.
(1) Rule. 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 an 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.
(2) Questions of fact for jury. [Reserved. See RCW 4.44.090.]
(b) By the court.
(1) Rule. 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 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) Questions of law to be decided by court. [Reserved. See RCW 4.44.080.]
(c) Advisory jury and trial by consent. In all actions not triable of right by a jury the court, upon motion or of its own initiative, may try an issue with an advisory jury or it may, with the consent of both parties, order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
(d) Trials by remote means.
(1) By stipulation. If the parties agree and the court approves, a trial may occur entirely or in part by remote means. In any remote trial, all participants must be able to see, hear, and speak with each other. The video and audio should be of sufficient quality to ensure participants are easily seen and understood. The court shall ensure that all hearings conducted pursuant to this rule are open to the public and that the public shall be able to simultaneously see and hear all participants.
(2) If any party proposes to hold a trial by remote means, a hearing shall be scheduled at least 30 days before trial, with at least 7 days’ notice to the court and parties. The parties may agree to this hearing occurring fewer than 30 days before trial. Alternatively, the parties may present an agreement or stipulation that the trial be held by remote means. If all parties do not agree, the trial shall be held in person; provided, however, the court may allow a party or counsel to appear by remote means at an in- person trial. This rule does not address voir dire or pretrial matters. CR 43 governs whether any witness can be called remotely at a trial held in person.
Amendment History
Adopted May 5, 1967, effective July 1, 1967; amended June 7, 2024, effective July 9, 2024.
Plain-English Summary
Rule 38 establishes the right to demand a jury; Rule 39 governs what happens next. If a jury has been properly demanded, the case gets marked on the docket as a jury action and every demanded issue goes to the jury, with two exceptions. The parties can agree, either in a written stipulation filed with the court or an oral stipulation made in open court and recorded, to try the case to the judge instead. Or the court itself can find, on motion or on its own, that no jury right exists under the constitution or a statute for some or all of the issues involved.
Issues that were never demanded for a jury go to the court by default. But the rule does not treat that as the end of the matter. Even where no party asked for a jury as of right, the judge retains discretion to order one anyway. The rule also authorizes an advisory jury: in a case with no jury right at all, the court may still convene a jury to hear an issue and advise the court, or, if both parties consent, order a jury whose verdict binds the parties as though the trial had been a jury matter as of right.
A newer addition addresses trials conducted wholly or partly by remote means. The parties can agree to it, subject to the court's approval, and any remote trial has to let every participant see, hear, and speak with the others, with video and audio good enough that everyone can be followed, and the proceeding has to remain open to the public. A party proposing a remote trial must get a hearing scheduled at least thirty days before trial, with at least seven days' notice to the court and the other parties, though the parties can agree to less lead time. If everyone does not agree to try the case remotely, the trial happens in person, though the court can still let an individual party or lawyer appear remotely at an otherwise in-person trial. This part of the rule does not reach voir dire or pretrial matters, and Rule 43 governs whether an individual witness can testify remotely during an in-person trial.
Frequently Asked Questions
What is the difference between a jury action and a court trial under Rule 39?
A jury action is a case where a jury has been properly demanded under Rule 38; every issue so demanded is tried to the jury unless the parties stipulate to a bench trial or the court finds no jury right exists. A court trial covers issues that were never demanded, which the judge decides, though the judge may still choose to send them to a jury.
Can the parties agree to skip a jury even after one was demanded?
Yes. The parties or their attorneys of record can stipulate to trial by the court alone, either in writing filed with the court or orally in open court with the stipulation entered in the record.
What is an advisory jury?
In a case where no party has a right to a jury trial, the court may still convene a jury to hear an issue and offer its view, without that verdict binding the court. If both parties consent instead, the court can order the jury's verdict to have the same binding effect as a jury trial by right.
Can a civil trial in Washington superior court be held remotely?
Yes, if the parties agree and the court approves. The rule requires that all participants be able to see, hear, and speak with each other, with the proceeding remaining open to the public, and it requires a hearing on the request at least thirty days before trial absent an agreement to a shorter timeline.
What happens if the parties do not all agree to a remote trial?
The trial is held in person. The court may still permit an individual party or attorney to appear remotely at that in-person trial, though this rule does not itself decide whether an individual witness can testify remotely, that question is governed by Rule 43.
Does Rule 39 cover remote jury selection or pretrial hearings?
No. The remote-trial provision is limited to the trial itself and expressly does not address voir dire or pretrial matters.
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 action versus court trialadvisory jury Washingtonremote civil trial rulestipulation to bench trialCR 39