Rule 38.Jury trial of right

Current through January 1, 2025 · Last verified July 8, 2026

In one sentenceRule 38 preserves the constitutional and statutory right to a jury trial, requires a party to demand it in writing and serve that demand within 14 days after the last pleading on the triable issue, and treats an unmade or improperly served demand as a waiver of that right.

Full Text of Rule 38

Text sizeJump to: (a) (b) (c) (d)

(a) Right preserved. The right of trial by jury as declared by the Constitution or statutes of the State shall be preserved to the parties inviolate.

(b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by:

(1) serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served; and

(2) filing the demand in accordance with Rule 5(d).

(c) Specifying issues. In its demand a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may—within 14 days after being served with the demand or within a shorter time ordered by the court serve a demand for a jury trial on any other or all factual issues.

(d) Waiver; withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.

End

Amendment History

The current West Virginia Rules of Civil Procedure took effect January 1, 2025, as part of a rewrite that modernized the rules’ numbering and structure. West Virginia does not publish a per-rule amendment history inside the compiled rules text reproduced here. The text above is verified current through the source’s own January 1, 2025 update; for the underlying adopting order and any later amendments, see the West Virginia Judiciary’s compiled rules page.

Plain-English Summary

The right to a jury trial doesn't disappear just because a case reaches West Virginia's civil procedure rules — Rule 38 preserves it exactly as the state Constitution and statutes provide. But preserving the right doesn't mean it happens automatically; a party has to ask for it.

A jury demand has to be in writing (it can be folded into a pleading) and served on the other parties no later than 14 days after the last pleading raising the triable issue is served, then filed. A party can demand a jury on only some issues; if so, any other party gets its own 14 days to demand a jury on the remaining issues. Say nothing about which issues, and the demand covers everything triable by right.

Miss that window, and the right is waived — there's no fallback. A demand that was properly made and filed can only be pulled back if every party agrees to withdraw it.

Frequently Asked Questions

How do I demand a jury trial in a West Virginia civil case?

Serve a written demand on the other parties — it can be part of a pleading — no later than 14 days after the last pleading directed to the triable issue is served, and file it under Rule 5(d).

What happens if I don't demand a jury trial in time?

You waive the right to one. Rule 38(d) makes serving and filing that demand on time the only way to keep the right, though under Rule 39(b) a court may still order a jury trial on an issue for which a jury might have been demanded.

Can I withdraw a jury demand once I've made it?

Only if all the parties consent to withdrawing it.

Source & verification. The rule text is reproduced verbatim from the official West Virginia Rules of Civil Procedure (W. Va. R. Civ. P. 38). Prescribed by the Supreme Court of Appeals of West Virginia (W. Va. Const. art. VIII, § 3). The plain-English summary is original and written by us. Last verified July 8, 2026. · Official source

Also known as: jury demand deadlineright to jury trialwaiving a jury trial