Rule 39 – Trial by Jury or by the Court

(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.

Summary and Explanation

Federal Rule of Civil Procedure 39 deals with the circumstances under which a trial by jury will be held or waived and how issues not demanded for trial by jury will be tried. Here’s a concise summary and explanation:


  1. Trial by Jury or by the Court: Rule 39 outlines that when a jury trial has been demanded under Rule 38, the trial should be by jury unless:
  • The parties or their attorneys of record stipulate to a trial by the court, either in writing or on the record.
  • The court finds that on some or all of those issues a right to a jury trial does not exist.
  1. Issues Not Demanded for Trial by Jury: Issues not demanded for trial by jury will be tried by the court unless the court orders a jury trial of its own initiative.
  2. Advisory Jury and Trial by Consent: The court may, on motion or of its own accord, order a trial with an advisory jury or conduct a trial with the consent of the parties, effectively allowing for flexibility in how certain issues are decided.


Rule 39 provides the framework for determining the mode of trial for civil cases in federal courts, emphasizing the primacy of the jury trial demand. It respects the constitutional right to a jury trial in applicable cases while recognizing that not all disputes may warrant or receive a jury trial.

The rule reflects the balance between the Seventh Amendment’s protection of the right to a jury trial and the practicalities of judicial procedure and efficiency. By allowing parties to stipulate to a non-jury trial or permitting the court to decide issues not demanded for trial by jury, Rule 39 ensures that the trial method best suited to the nature of the dispute and the preferences of the parties is used.

The provisions for advisory juries and trials by consent under Rule 39(b) and (c) offer additional flexibility, acknowledging that there are circumstances where a jury’s input may be beneficial even if not strictly required by law or where the parties agree to have a jury even in cases where the law does not mandate one.

Overall, Rule 39 facilitates a tailored approach to each case, allowing for jury trials where appropriate and alternative methods of trial resolution where more suitable, all while maintaining adherence to constitutional rights and legal standards.


(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Notes of Advisory Committee on Rules—1937

The provisions for express waiver of jury trial found in U.S.C., Title 28, [former] §773 (Trial of issues of fact; by court) are incorporated in this rule. See rule 38, however, which extends the provisions for waiver of jury. U.S.C., Title 28, [former] §772 (Trial of issues of fact; in equity in patent causes) is unaffected by this rule. When certain of the issues are to be tried by jury and others by the court, the court may determine the sequence in which such issues shall be tried. See Liberty Oil Co. v. Condon Nat. Bank, 260 U.S. 235 (1922).

A discretionary power in the courts to send issues of fact to the jury is common in state procedure. Compare Calif.Code Civ.Proc. (Deering, 1937) §592; 1 Colo.Stat.Ann. (1935) Code Civ.Proc., ch. 12, §191; Conn.Gen.Stat. (1930) §5625; 2 Minn.Stat. (Mason, 1927) §9288; 4 Mont.Rev.Codes Ann. (1935) §9327; N.Y.C.P.A. (1937) §430; 2 Ohio Gen.Code Ann. (Page, 1926) §11380; 1 Okla.Stat.Ann. (Harlow, 1931) §351; Utah Rev.Stat.Ann. (1933) §104–23–5; 2 Wash.Rev.Stat.Ann. (Remington, 1932) §315; Wis.Stat. (1935) §270.07. See [former] Equity Rule 23 (Matters Ordinarily Determinable at Law When Arising in Suit in Equity to be Disposed of Therein) and U.S.C., Title 28, [former] §772 (Trial of issues of fact; in equity in patent causes); Colleton Merc. Mfg. Co. v. Savannah River Lumber Co., 280 Fed. 358 (C.C.A.4th, 1922); Fed. Res. Bk. of San Francisco v. Idaho Grimm Alfalfa Seed Growers’ Ass’n, 8 F.(2d) 922 (C.C.A.9th, 1925), cert. den. 270 U.S. 646 (1926); Watt v. Starke, 101 U.S. 247, 25 L.Ed. 826 (1879).

Committee Notes on Rules—2007 Amendment

The language of Rule 39 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

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