What Taylor Swift has to prove to win her case against a former Denver DJ

9NEWS' legal analyst Scott Robinson on what both sides have to prove to win their case.

KUSA - A media circus will descend on Denver this week. The center? The civil lawsuit turned jury trial between superstar Taylor Swift and ex-radio DJ David Mueller.

In case you aren't caught up, here's a short timeline of events: 

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  • On June 2, 2013, Swift was in Denver headlining her Red tour at the Pepsi Center when she alleges during a photo op with Mueller and his then-girlfriend -- both employees of 98.5KYGO at the time -- Mueller reached his hand up Swift's skirt and "grabbed [her] bare ass."
  • Mueller says he was later verbally abused and thrown from the venue by her security after the alleged incident.
  • Two days later, Mueller was fired from the station.
  • In 2015, two years after his firing, Mueller sued Swift -- claiming the false accusation caused him to lose his $150,000 per year job at KYGO. 
  • Swift countersued for assault and battery. 

9NEWS legal analyst Scott Robinson spoke candidly about the case, which starts with jury selection on Monday in a Denver federal court. 

What does Mueller have to prove to win his case?

"Mueller has to prove...that he was terminated wrongfully because of false claims made against him by Swift and people representing Swift. He also will have to show that that termination caused civic economic damages."

"[Mueller] was only about six months into a two-year contract with KYGO, and so it would appear fairly obviously that he would be able to show that he lost the year and half of work, but he's basically claiming that he was blackballed from the industry because of the allegations Swift made against him."

What does Swift have to prove to win her case? 

"On Swift's side, she has to show that he engaged in inappropriate sexual contact without her consent and that he did so intentionally, not accidentally," Robinson said. 

Swift has said in depositions Mueller reached his hand up her skirt and "grabbed [her] ass right when I was having to pose for a photo." She also said the timing of the alleged assault "felt intentional." 

How hard would it be to prove the alleged assault actually happened? 

Although there is a photo of the meet-and-greet obtained by TMZ, there is no angle that would support Swift's or Mueller's claim. Robinson says it will be hard to prove either way in this "he said-she said" situation.

"While the photography surely doesn't show Mueller with his hand where it ought not to have been, it's certainly in a position where it's easy to interpret it as such," Robinson said. "That photograph is going to be one of the key parts of the case. Because in that photograph, David Mueller appears to have his hand firmly in the area of Swift's derriere, which few would argue was an appropriate place to have your hand at the time of a photo shoot with a celebrity."

Why did David Mueller wait two years after he was fired to file the lawsuit?

Robinson says it's usually hard to justify why anyone would wait so long to sue, but Mueller has a reason in this case. 

"You can make an excuse for David Mueller in that he didn't realize what the overall economic impact would be of the allegations until he tried to get another job," Robinson said. "So it's at least excusable that he waited a long time."

Swift's camp also didn't act in the way you would anticipate given the allegations, Robinson pointed out. 

"Taylor Swift did not report the alleged sexual assault to the police. This was all done through her security personnel and her mother and a call between one of her representatives, now known as a senior manager, and the head of KYGO."

Why is this not a defamation case? 

This isn't a defamation case because the one-year statute of limitations passed prior to the lawsuit's filing. Mueller had slander in his original suit, but that was thrown out. 

Which way do you think this case will go?

"It’s going to be a very difficult case for Mueller to win and the reason for that are two. One: the arguably damning photograph that has been made public by TMZ, but is absolutely going to be a cornerstone of Taylor Swift’s case at trial. The other is the failure of Mueller to preserve the two-hour interview with his bosses that he claims was the reason that he lost his job."

The day after the concert, Mueller secretly recorded a 2-hour conversation with two of his bosses at KYGO -- Eddie Haskell and Bob Call. According to both Call and Haskell, Mueller changed his story about touching Swift. At first, he said he absolutely didn't, but later said (according to his former bosses), if he did, it was accidental. 

This, coupled with the fact this recording has since been lost, will work against Mueller, Robinson predicts. 

"Mueller – the person who was claiming these enormous economic losses – failed to preserve the entire conversation which he surreptitiously recorded, legally but secretly," Robinson said. "They all had something bad happen to them. The iPad was shattered, the laptop had coffee spilled on it, the external hard drive stopped working and the cell phone on which the recordings were probably made – although that has not yet been established – it no longer works and has been discarded as well. That’s an awful lot of lot devices and an awful lot of lost information." 

Mueller was sanctioned for the loss of information. 

What’s the best evidence in this case?

Robinson says it's obviously that photo, but it can work for either party. 

"The strongest evidence on either side is the interpretation of the photograph," he said. 

Another key in the case will be how the jury interprets Mueller's inability to hold onto the entire recording of his meeting with his bosses. 

"If the jury believes Mueller when he says that he didn’t preserve the entire conversation because it wasn’t that important – he kept the important parts," Robinson said. "If they believe that his destruction of these materials or his failure to preserve was accidental and if they believe his strongly held claim that he did not inadvertently or otherwise inappropriately touch Taylor Swift, then he wins."

"But if the jury determines that that photograph shows the hanky panky – literally – is being engaged in and or that Mueller probably did not preserve the whole conversation because it did not help his future case, then Swift wins."

© 2017 KUSA-TV


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