An advisory jury is a panel of citizens a federal judge empanels to weigh in on factual questions in a case where no one has a right to a jury trial. The jury hears evidence and returns findings, but the judge keeps full decision-making authority and can accept, reject, or ignore those findings. Federal Rule of Civil Procedure 39(c) authorizes the practice, and it shows up most often in civil cases involving equitable claims such as injunctions or orders to perform a contract.1Legal Information Institute. Federal Rules of Civil Procedure Rule 39 – Trial by Jury or by the Court
Why Advisory Juries Exist
The Seventh Amendment guarantees a jury trial in federal civil cases, but only for claims that are “legal in their nature” — those seeking money damages of the kind common-law courts historically decided. Claims seeking equitable relief, like an injunction ordering someone to stop certain conduct or a court order requiring performance of a contract, fall outside that guarantee. Judges have decided equitable disputes without juries since before the Constitution was ratified.2Constitution Annotated. U.S. Constitution Seventh Amendment – Identifying Civil Cases Requiring a Jury Trial
The advisory jury fills that gap. When a case involves only equitable claims, the judge can still ask a jury to weigh in. Rule 39(c)(1) gives the court authority to try any issue with an advisory jury, either on a party’s motion or on the court’s own initiative.1Legal Information Institute. Federal Rules of Civil Procedure Rule 39 – Trial by Jury or by the Court The findings are informational. The judge still decides.
Mixed Cases: Legal and Equitable Claims in One Trial
Lawsuits often combine legal claims (money) with equitable claims (court orders). When that happens, the jury’s role splits. On the legal issues, the verdict binds the judge just as in any ordinary jury trial. On the equitable issues, the same jury acts in an advisory capacity, and the judge decides those questions independently. One jury can carry both hats in a single proceeding.
Parties with legal claims still have to demand a jury trial on time, or they can waive that right. The equitable claims never carry a jury-trial right regardless of what anyone demands.2Constitution Annotated. U.S. Constitution Seventh Amendment – Identifying Civil Cases Requiring a Jury Trial
No Party Has a Right to an Advisory Jury
Asking for an advisory jury is not the same as demanding a jury trial. No party is entitled to one. The decision rests entirely with the trial judge, and Rule 39(c) says the court “may” use one, not “shall.”1Legal Information Institute. Federal Rules of Civil Procedure Rule 39 – Trial by Jury or by the Court The judge can also empanel an advisory jury without anyone requesting it, and even over the parties’ objections.
Courts tend to be more receptive in a few recurring situations. When a binding jury is already being seated for the legal claims in a mixed case, adding advisory findings on the equitable issues costs very little. Judges are also more inclined to grant the motion when there has been genuine uncertainty about whether jury-trial rights exist, because having an advisory verdict in the record can prevent a complete retrial if an appellate court later rules the parties were entitled to a binding jury.
Judges sometimes decline for the opposite reasons. The advisory process adds cost and delay with no guaranteed benefit: if the judge would have reached the same conclusion anyway, the verdict was unnecessary, and if the judge disagrees, the verdict gets set aside. In cases governed by statutes that specifically require nonjury trials, like the Federal Tort Claims Act, judges are especially reluctant.
The Designation Has to Come Before Trial
If the judge is going to use an advisory jury, the jury must be designated as advisory before trial begins. A judge cannot wait until after the verdict to decide whether the jury was advisory or binding. The parties are entitled to know in advance who is making the final factual findings, because that distinction shapes trial strategy from opening statement onward.
How to Request an Advisory Jury
A party seeking an advisory jury files a motion under Rule 39(c), usually with a brief explaining why the panel would help the court resolve specific factual disputes.1Legal Information Institute. Federal Rules of Civil Procedure Rule 39 – Trial by Jury or by the Court Vague requests rarely succeed. The motion should identify the exact factual questions the jury would address: whether a party acted in good faith during negotiations, for example, or whether conduct was reasonable under the circumstances.
Timing matters. Most courts expect the motion well before the final pretrial conference, because empaneling a jury requires coordination of summonses, courtroom scheduling, and trial logistics that a bench trial does not. Each district court sets its own filing deadlines through local rules or standing orders, and those deadlines often line up with the joint pretrial statement. A late motion can effectively forfeit the request.
Advisory Jury vs. Consent Jury
Rule 39(c) offers a second option that is easy to confuse with an advisory jury but works very differently. Under subsection (c)(2), when all parties consent, the court can empanel a jury whose verdict is binding, with the same force as if a jury trial were a matter of right.1Legal Information Institute. Federal Rules of Civil Procedure Rule 39 – Trial by Jury or by the Court The judge cannot override that verdict the way a judge overrides advisory findings.
With an advisory jury, the judge writes independent findings and may disregard the verdict entirely. With a consent jury, the verdict sticks. One important limitation: the consent option is unavailable when the case is against the United States and a federal statute requires a nonjury trial.1Legal Information Institute. Federal Rules of Civil Procedure Rule 39 – Trial by Jury or by the Court Consenting to a binding jury means accepting the same finality as any other jury verdict.
How an Advisory Jury Trial Runs
Jury selection proceeds through voir dire the same way as any civil trial. Attorneys question prospective jurors about their backgrounds and potential biases, challenges for cause are available, and the judge resolves disputes over whether individual jurors should be excused.
Once seated, the advisory jury functions like a regular trial jury during the evidentiary phase. Jurors hear testimony, review exhibits, and listen to arguments from both sides. The judge instructs the jury on the applicable legal standards and identifies the specific factual questions the jury must answer. Advisory juries usually complete a special verdict form with targeted questions rather than a general verdict: for example, “Did the defendant breach the contract?” or “Was the plaintiff’s reliance reasonable?”
After closing arguments and instructions, the jury deliberates privately and attempts to reach agreement on each question. The answers are delivered in open court. From that point forward, the decision belongs to the judge.
What the Judge Does With the Verdict
Once the advisory jury delivers its findings, Rule 52(a)(1) requires the judge to make independent findings of fact and state conclusions of law separately. This is not optional. Even if the judge agrees with every word of the jury’s verdict, the judge must still produce a written opinion explaining the factual basis in the judge’s own analysis.3Legal Information Institute. Federal Rules of Civil Procedure Rule 52 – Findings and Conclusions by the Court
The judge treats the advisory verdict as one input. It may confirm what the judge was already thinking, flag factual issues worth a second look, or diverge entirely from the judge’s own reading. When the judge disagrees, the judge simply rules based on an independent assessment of the evidence. No explanation for rejecting the advisory verdict is required.
This is where advisory juries differ most sharply from binding juries. A binding jury’s factual findings can only be overturned in narrow circumstances, like when no reasonable jury could have reached the same conclusion. An advisory jury’s findings carry no such protection. They exist to inform the judge, not to constrain the judge.
Appeal
On appeal, the advisory verdict essentially disappears. Appellate courts review the judge’s written findings, not the jury’s. Under Rule 52(a)(6), a trial judge’s findings of fact cannot be set aside unless clearly erroneous, and the reviewing court must give appropriate weight to the trial judge’s opportunity to observe witnesses firsthand.3Legal Information Institute. Federal Rules of Civil Procedure Rule 52 – Findings and Conclusions by the Court This standard applies whether or not the judge agreed with the advisory jury.
A separate appellate question arises when a party challenges the judge’s decision to grant or deny an advisory jury. Because Rule 39(c) vests that decision in the judge’s discretion, appellate courts review under an abuse-of-discretion standard, a high bar to clear. Winning that argument requires showing the trial judge acted unreasonably, not just that a different judge might have decided differently.
When Asking for an Advisory Jury Is Worth It
Requesting an advisory jury makes the most sense when a case turns on credibility and you believe community members would be sympathetic to your side. If the evidence is emotionally compelling but the claims are equitable, putting those facts in front of a jury, even a non-binding one, gives you a community perspective that may reinforce the judge’s own inclinations.
Advisory juries also work as insurance against appellate reversal. When the law is unsettled on whether a jury-trial right exists, an advisory verdict on the record can save everyone from starting over. If the appellate court later decides a binding jury was required, the trial court can potentially treat the advisory verdict as binding.
The calculus shifts when added cost and time outweigh the benefits. Jury trials are more expensive and slower than bench trials, and if the judge is likely to reach a well-reasoned decision without outside input, the advisory jury adds process without adding value. Where a statute mandates a bench trial or the factual issues are highly technical, like patent claim construction or complex financial disputes, judges tend to view advisory juries as more hindrance than help.
State Courts
Advisory juries are not exclusively a federal tool. Many states have long recognized a similar discretionary power allowing judges to submit factual questions to a jury in equity cases. The notes to Federal Rule 39 specifically reference this practice as common across state procedural systems.1Legal Information Institute. Federal Rules of Civil Procedure Rule 39 – Trial by Jury or by the Court Details vary. Different states set different rules for when and how advisory juries may be used, and some use the device more often than others. In state court, check your state’s rules of civil procedure for the local equivalent of Rule 39(c).