Rule 39.Trial by Jury or by the Court

Enacted effective October 1, 2011 · Last verified June 26, 2026

In one sentenceRule 39 explains what happens after a jury is demanded — the case is tried to a jury on the demanded issues unless the parties stipulate otherwise or no jury right exists — and lets a court use an advisory jury in non-jury cases.

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 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.

End

Plain-English Summary

Rule 39 follows up on the jury demand of Rule 38. When a jury trial has been properly demanded, the case is designated a jury action and tried to a jury on the demanded issues — unless the parties stipulate to a bench trial or the court finds there is no right to a jury on a given issue. Issues for which no jury was demanded are tried by the court, though the court may still order a jury trial on them. In a case not triable to a jury as of right, the court may use an advisory jury, or, with the parties' consent, empanel a jury whose verdict has the same effect as one of right.

Frequently Asked Questions

Can a case still be tried without a jury after one is demanded?

Yes — if the parties stipulate to a nonjury trial, or if the court finds there is no right to a jury trial on some or all of the demanded issues.

What is an advisory jury?

In a case not triable to a jury as of right, the court may empanel an advisory jury to help it decide factual issues; the court remains the ultimate fact-finder unless the parties consent to a binding jury verdict.

Source & verification. Reproduced verbatim from the Montana Code Annotated as published by the State Law Library of Montana and the Montana Legislature. This rule has not been amended since its adoption. Adopted by the Supreme Court of Montana (AF 07-0157). Last verified June 26, 2026. · Official text

Also known as: trial by juryadvisory jurybench trial