Rule 39.Trial by Jury or by the Court

Last amended December 1, 2007 · Last verified June 30, 2026

In one sentenceRule 39 directs how a case is tried once a jury is or is not demanded: a proper demand sends the triable issues to a jury unless the parties or the court withdraw it, while issues with no jury right are tried to the court, which may use an advisory jury.

Full Text of Rule 39

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

(a) When a Demand Is Made. When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all issues so demanded must 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 on some or all of those issues there is no federal right to a jury trial.

(b) When No Demand Is Made. Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.

(c) Advisory Jury; Jury 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, unless the action is against the United States and a federal statute provides for a nonjury trial.

End

Amendment History

(Amended April 30, 2007, effective December 1, 2007.)

Plain-English Summary

Rule 38 is about claiming a jury; Rule 39 is about what happens next. When a jury has been properly demanded, the trial on those issues is by jury — unless the parties stipulate to a bench trial, or the court finds that there is no federal right to a jury on some or all of the issues.

If no jury is demanded, the court tries the issues. Even then, the court has flexibility: on an issue not triable of right by a jury, it may try the issue with an advisory jury, or — with the parties’ consent — try it with a jury whose verdict has the same effect as if a jury had been demanded as of right. The rule keeps the line between jury and bench trials clear while leaving room for the court to manage mixed cases.

Frequently Asked Questions

What happens after a jury is demanded under Rule 38?

Rule 39 sends the demanded issues to a jury unless the parties stipulate otherwise or the court finds there is no jury right; issues without a jury are tried to the court.

What is an advisory jury?

A jury the court may empanel on an issue not triable of right by a jury; its verdict advises the court, which remains responsible for the decision (Rule 39(c)).

Source & verification. The rule text and amendment history are reproduced verbatim from the official Federal Rules of Civil Procedure (Fed. R. Civ. P. 39), a public-domain work of the U.S. Government. Prescribed by the United States Supreme Court under the Rules Enabling Act. The plain-English summary is original and written by us. Last verified June 30, 2026. · Official source

Also known as: FRCP 39Fed. R. Civ. P. 39trial by jury or by the courtadvisory jurywithdrawing a jury demand