Rule 39: Trial by Jury or by the Court

Rule 39 works in tandem with Rule 38 to manage the mechanics of jury trials. Once a proper jury demand has been filed, the clerk designates the case as a jury action and the trial must proceed before a jury on all properly demanded issues.

Even when no party has demanded a jury trial, the court has discretion to order one on any issue where a party could have demanded a jury. This is a rarely used but important safety valve. The court may also use an advisory jury in cases tried to the bench — the advisory jury's verdict is not binding, but it gives the judge the benefit of the jury's perspective.

If no jury demand is made and the court does not order a jury on its own, all issues are tried to the bench. The parties may also consent to a bench trial even when a jury right exists, effectively waiving the right by mutual agreement.