Rule 39.Trial by jury or by the court.

Last verified July 3, 2026

In one sentenceRule 39 says what happens once a jury trial is or isn't demanded -- when the court can try issues itself despite a demand, and when it can empanel an advisory jury even without one.

Full Text of Rule 39

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

(a) By jury. – When trial by jury has been demanded and has not been withdrawn as provided in Rule 38, the action shall be designated upon the docket as a jury action.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

(1) The parties who have pleaded or otherwise appeared in the action 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 minutes, consent to trial by the court sitting without a jury, or

(2) 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.

(b) By the court. – 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 trial by jury in an action in which such a demand might have been made of right, the court in its discretion upon motion or of its own initiative may order a trial by jury of any or all issues.

(c) Advisory jury and trial by consent. – In all actions not triable of right by a jury the court upon motion or if its own initiative may try any issue or question of fact with an advisory jury or the court, with the consent of the parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. In either event the jury shall be selected in the manner provided by Rule 47(a).

End

Amendment History

(1967, c. 954, s. 1.)

Plain-English Summary

Rule 39(a) sends demanded, non-withdrawn issues to a jury unless the appeared parties -- by written stipulation filed with the court, or an oral stipulation made in open court and entered in the minutes -- consent to a bench trial, or the court finds, on motion or its own initiative, that no constitutional or statutory jury-trial right exists for some or all of those issues.

Rule 39(b) sends issues never demanded for jury trial to the court, though the court may still order a jury trial of any or all such issues on its own initiative or on motion, even where a party could have demanded one but didn't. Rule 39(c) lets the court, for issues with no right to a jury trial, try any issue or question of fact with an advisory jury on motion or its own initiative, or -- with the parties' consent -- hold a jury trial whose verdict binds the case as if trial by jury had been a matter of right; either way, the jury is selected the way Rule 47(a) provides.

Frequently Asked Questions

Can parties agree to a bench trial after already demanding a jury?

Yes. Rule 39(a) lets the appeared parties consent to a bench trial by written stipulation filed with the court or an oral stipulation made in open court and entered in the minutes.

Can a court order a jury trial even if no one demanded one?

Yes. Rule 39(b) lets the court order a jury trial of any or all issues on its own initiative or on motion, even where a demand could have been made but wasn't.

What is an advisory jury?

Under Rule 39(c), for issues with no right to jury trial, the court may still submit them to a jury for a non-binding recommendation -- or, with the parties' consent, hold a binding jury trial as if it were a matter of right.

Source & verification. The rule text and history citation are reproduced verbatim from the official North Carolina General Statutes, Chapter 1A (N.C. R. Civ. P. 39). Enacted by the North Carolina General Assembly (S.L. 1967, c. 954, codified at N.C.G.S. § 1A-1). The plain-English summary is original and written by us. Last verified July 3, 2026. · Official source

Also known as: advisory jurystipulation to trial by courtbench trial by stipulationjury trial by consentwaiving right to jury trialtrial by the court