Current through January 1, 2025 · Last verified July 8, 2026
In one sentenceRule 39 puts a properly-demanded jury trial on the docket as a jury action unless the parties stipulate to a nonjury trial or the court finds no jury right exists, and lets the court order an advisory jury or, with the parties' consent, a binding jury trial even in cases that aren't triable of right by a jury.
(a)When a demand is made. When a jury trial has been demanded under Rule 38, the action shall be designated on the docket as a jury action. The trial on all issues so demanded shall be by jury unless:
(1)the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or
(2)the court, on motion or on its own, finds that a right of trial by jury on some or all of those issues does not exist under the Constitution or statutes of the State.
(b)By the court. Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion or on its own, order a jury trial on any issue for which a jury might have been demanded.
(c)Advisory jury and trial by consent. In an action not triable of right by a jury the court, on motion or on its own
(1)may try any issue with an advisory jury; or
(2)may, with the parties’ consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right.
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
Once a jury trial has been properly demanded under Rule 38, Rule 39 puts the case on the docket as a jury action, and the triable issues go to a jury — unless the parties stipulate otherwise on the record, or the court determines that no constitutional or statutory jury right covers those issues. Issues that were never properly demanded for a jury go to the court instead, though the court can still order a jury trial on them anyway, on its own or on motion.
Even in a case that isn't triable of right by a jury at all, the court has options: it can try any issue with an advisory jury whose verdict guides but doesn't bind the court, or, if the parties consent, try an issue with a jury whose verdict counts exactly as if a jury trial had been a matter of right.
Frequently Asked Questions
What happens once a jury trial has been properly demanded?
The action goes on the docket as a jury action, and the demanded issues are tried by jury, unless the parties stipulate to a nonjury trial or the court finds no jury right exists for those issues.
Can a court order a jury trial even if no one properly demanded one?
Yes. Rule 39(b) lets the court order a jury trial on any issue for which a jury might have been demanded, on its own or on motion.
What is an "advisory jury"?
A jury the court uses in a case not triable of right by a jury, whose verdict advises but doesn't bind the court's own decision — unless the parties consent to make its verdict binding.
Source & verification. The rule text is reproduced verbatim from the
official West Virginia Rules of Civil Procedure (W. Va. R. Civ. P. 39). 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:advisory jurynonjury trial stipulationjury action docket