§ RULE 39. TRIAL BY JURY OR BY THE COURT

Codes > Delaware Superior Court Rules of Civil Procedure > VI. Trials > RULE 39.

RULE 39. TRIAL BY JURY OR BY THE COURT

(a) By Jury of 12. When trial by a jury of 12 persons has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action (12). The trial of all issues demanded for trial by jury by any party shall then be by a jury of 12 persons, unless (1) the parties 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 record, consent to trial by the Court sitting without a jury or (2) the Court upon motion or of its own initiative finds a right of trial by jury of some or all of those issues does not exist.

(aa) By Jury of 6. When trial by a jury of 6 persons has been consented to as provided in Rule 38, the action shall be designated upon the docket as a jury action (6). The trial of all issues demanded for trial by jury shall be by a jury of 6 persons unless (1) the parties 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 record, consent to trial by the Court sitting without a jury or (2) the Court upon or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist; but, notwithstanding the failure of a party to demand trial by a jury of 12 persons, the Court in its discretion upon motion may order a trial by a jury of 12 persons of all issues for which trial by jury has been demanded and a right of trial by jury exists.

(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 jury in an action in which such a demand might have been made of right, the Court in its discretion upon motion may order a trial by a 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 of its own initiative may try any issue with an advisory jury or, except in actions when a statute provides for trial without a jury, the Court, with the consent of both 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.