Thus, when obtaining juror affidavits, leave no stone unturned. If it turns out that the polled number of jurors is inconsistent with the polling during deliberations, such facts may be relevant in the court’s analysis of whether the moving party suffered actual harm as a result of the misconduct.
Furthermore, while some cases have echoed the sentiment that in civil matters the number of influenced jurors required for reversal will vary depending on the final vote of the verdict i.e., if the verdict is 9 to 3 only one biased juror is necessary, compared to if verdict is 11 to 1, then at least 2 bias or infected jurors is necessary for reversal, the analysis does not appear to be so black and white.
A new trial may be warranted based upon the misconduct of a single juror, even where the verdict is 10 to 2 or 11 to 1, if a de novo review of the record establishes a likelihood of prejudice. (See Deward v. Clough (1966) 245 Cal.App.2d 439, 443- 447 [reversing order denying new trial based on the misconduct of one juror where verdict was 11 to 1]; see also Grobeson, supra, 190 Cal.App.4th at p. 786 [court upheld an order granting a new trial based on one juror’s prejudgment of the case despite a verdict of 10 to 2 where there was confusion by the jury as to the verdict form. The analysis of prejudice concerns whether a review of the entire record demonstrates a reasonable probability of actual harm to the complaining party resulting from misconduct.