Ohio Civ.R. 39

As amended through October 1, 2024

Rule 39 - Trial by Jury or by the Court

(A)By jury

When trial by jury has been demanded 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 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 that a right of trial by jury of some or all of those issues does not exist. The failure of a party or his attorney of record either to answer or appear for trial constitutes a waiver of trial by jury by such party and authorizes submission of all issues to the court.

(B) By the court

(1) Issues not demanded for trial by jury as provided in Civ.R. 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.

(2) No later than the deadline set in a case scheduling order or thirty days before a scheduled trial, a party may request that a trial to the court be conducted using live twoway video and audio conference technology. The requesting party shall indicate in the request whether any special accommodations are anticipated or required.

(3) Upon a party's request under division (B)(2) of this rule, the court may, in its discretion, conduct the trial using live two-way video and audio conference technology. In deciding on the party's request, the court shall consider the views of the parties, the anticipated probative value of the evidence, difficulty and expense of presenting witnesses by physical presence versus remote presence, convenience and efficiency for the parties to the case, and the nature and complexity of the issues to be tried. No trial shall be conducted remotely over the objection of a party to the case unless one of the parties is restricted in physical appearance due to one of the following circumstances, or for other good cause shown:

(a) Active duty in the United States military;

(b) Incarceration;

(c) Medical restrictions;

(d) Significant travel distance from court.

(C)Advisory jury and trial by consent

In all actions not triable of right by a jury (1) the court upon motion or on its own initiative may try any issue with an advisory jury or (2) the court, with the consent of both parties, may order a trial of any issue with a jury, whose verdict has the same effect as if trial by jury had been a matter of right.

Ohio. Civ.R. 39

Effective:7/1/1970; amended effective 7/1/1971; amended effective 7/1/2023.

Staff Note (July 1, 2023 Amendment)

A nonexclusive list of factors that courts and litigants may consider in regard to remote trials or hearings includes (1) the age and any disabilities or special needs of a witness that may affect the taking of testimony; (2) whether language translation will be required; (3) procedures available for handling exhibits or demonstrations; (4) arrangements for making and ruling on objections or for sidebar conferences within or outside the hearing of a witness appearing by remote presence; (5) limitations upon persons who may be present in the location where the witness testifies, assuring identification of all such persons prior to the testimony; and (6) whether any technological issues involving the video display or recording of the trial or hearing via remote presence may affect the ability to create a clear record of all testimony.