In this episode…

Our guest today, Dr. Jeffrey Buckholz, owns Buckholz Traffic, a full-service traffic engineering consultation firm. He is a nationally recognized expert in traffic signal operation, timing, design, and construction. Dr. Buckholz has participated in over 200 cases with engagements including both depositions and trial work and holds a Ph.D. in civil engineering from the University of Florida.

In this episode, Dr. Buckholz addresses rebuttals to initial expert reports which can make up a significant portion of expert witnesses’ engagements. For example, when working for the defense, Dr. Buckholz suggests waiting until the opposing expert’s report is produced before he begins to work on his rebuttal report – that way he knows exactly the issues he is targeting and the client isn’t spending money for unnecessary work.

For more tips from Dr. Buckholz, listen in.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Jeffrey Buckholz, Owner at Buckholz Traffic

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and today I am excited to welcome Dr. Jeffrey Buckholz. Since 1988, Dr. Buckholz has operated Buckholz Traffic, a full-service traffic engineering consultation firm. He has participated in over 200 cases with engagements for both plaintiff and defendant. He has done depositions and trial work. Dr. Buckholz holds a Ph.D. in civil engineering from the University of Florida. Dr. Buckholz, thank you so much for joining me here today.

Dr. Jeffrey Buckholz: Nice to be here.

Noah Bolmer: Let’s jump into it. You have been a traffic engineer for over 30 years. How did you get started with that, and how did it lead to becoming an expert witness?

Dr. Jeffrey Buckholz: I fell into it. I was interested in transportation, futuristic transportation. That is what hooks a young kid like, space exploration and flying cars. Then, you settle down in the real world where you must make money, which leads to traffic, which led me to become a Traffic Engineer.

Noah Bolmer: How did that transition into expert witnessing? Is that something that you were looking to do, or was that something that also fell into your lap?

Dr. Jeffrey Buckholz: I had a lawyer friend who asked me if I wanted to do a case in the early 1990s in Massachusetts. Then, I started slowly doing cases, one at a time. I was busy with my engineering practice, and then it grew, and I have done almost 300 cases.

Noah Bolmer: That is quite a few. if you can think back to the beginning, you might not remember the first couple of cases, but what was that like? What were those initial calls like, did you feel properly prepared and how did that change over time?

Dr. Jeffrey Buckholz: I was never intimidated by it, because if you are an expert, you are an expert. Typically, you know more than anybody else at the table. So, that was never a problem. I have always had good communication skills so that helps in this field.

Noah Bolmer: What does it mean to be an expert in your field? Is that something that you are always learning? Do you go to seminars or is it more static than other fields?

Dr. Jeffrey Buckholz: I do not go to as many seminars as I used to because there is not as much useful information as before I did not know as much. As you get to know more, there is less out there. I still go to seminars, and I still do a lot of stuff online. You can learn so much online without having to attend a seminar. As I work, I learn. In my opinion, if you are an expert witness and you are not working in the field, that is a bit of a deficit because you cannot keep up with the standard practice. It can pass you by. If you retire, and continue as an expert witness, after 5 or 10 years, you may not know what is going on.

Noah Bolmer: There are a couple of types of expert witnesses. For instance, there are consulting and testifying experts. Is there a significant difference in the way that you approach them?

Dr. Jeffrey Buckholz: My big separation is between people who do it full-time, so they rely on expert witness work, and others like me who do it part time as an attachment to my engineering work because I call balls and strikes when I am contacted by a lawyer. Sometimes I tell them what they want to hear. Sometimes I tell them what they do not want to hear. I give them the good, the bad and the ugly. What I see. Whereas somebody whose livelihood is dependent upon it might tend to look at the case the way the lawyer wants him to look at it. I think there is a plus to practicing in the field besides just staying up on the material.

Noah Bolmer: Do you think that there are many ethical issues in being an expert witness? Do you find that attorneys are often nudging you to say things in particular ways, or to put things in a particular manner in your report?

Dr. Jeffrey Buckholz: Of course. Their objective is to win, and mine is to tell the truth. Sometimes, the two do not go together, but you do your best for your client, but sometimes objectives run up against each other. There are many ethical issues in transportation and expert witness work in general, and it is surprising to me that, here in Florida, the Board of Professional Engineers will not review any expert witness testimony. They have told me that if somebody gets in as an expert witness and says something negligent or crazy wrong off the wall, they will not discipline that professional engineer. That is disconcerting because in courtrooms, or depositions, it is important to be ethical, tell the truth, and be competent. For them not to patrol that, to me, is curious.

Noah Bolmer: How do you recommend to newer experts just getting into this to avoid those sorts of pitfalls? They might be in their first engagements and not sure exactly how all the ethics run in when an attorney is trying to push you or something like that. How do you recommend newer experts navigate that?

Dr. Jeffrey Buckholz: If they are a registered professional, they have taken ethics classes. Everybody requires you to take ethics classes, so it is not like this is blindsiding them. Lawyers and others in the community will ask you to bend the numbers and the development goes on so they can get what they want. You run into this conflict all the time. As an engineer, if you do not adhere to your principles, you have people going into space with O rings that do not work and people dying. That is exactly what happened in that case. That can happen in any case when you do not stick to your principles.  It has to be drilled into a young engineer’s head. You are an engineer, and you are better than a normal person, and you have to act like it.

Noah Bolmer: Let’s talk about report writing. You mentioned in your e-mail that you are sometimes given too many irrelevant documents when first engaged. On one side, attorneys ensure that they are only sending what is relevant. On the other side, what is your process of weeding through it?

Dr. Jeffrey Buckholz: Often, especially when the Department of Transportation (DOT) is an opponent, the DOT is sued or related to the DOT. Maybe they are suing a contractor they worked on a DOT job, and they request the file from DOT. You would not believe the data dump they get. They get soil reports, environmental reports, and things that have nothing to do with the accident. It would be in their best interest to have a person who is inexpensive at their company but has some intelligence to sort out and get rid of the sales reports before they send the disk to me. Often, they send the whole darn disk to me. What do I do? I try to look through the information quickly and say, “OK, those are soil reports.” I am not going to read through all of those. I know none of them are of any interest. They can save themselves some time. I still must look, and it takes a while to verify there is no golden nugget stuff between the soil reports, which I have found. If they go through and sort that out before they send it to me, they will save themselves time and money. Again, when I get it and see it has not been done, I try to sort it through as quickly as possible.

Noah Bolmer: You also mentioned that your overall report-writing strategy is straightforward once you have decided which documents are relevant. Walk me through your process and in what capacity do you involve the attorney during the report writing process?

Dr. Jeffrey Buckholz: I have had attorneys send me the letter. Here is the letter. It is nice. I will read it. But I am starting on my own here. I am not going to sign or edit your letter. So, I start on my own. First, I list the pertinent things I have reviewed. I have reviewed many things, and some are not pertinent. I list applicable items in bullet point order. Then, I report my observations, not conclusions. They state the date an accident occurred and how it happened. The relevant issues with no conclusions. My third section is based on those observations. Here are my professional opinions. I do those in three steps, and all expert witnesses include this disclaimer that if any more information becomes available, our opinions might change.

Noah Bolmer: How about the kind of tone and editing, things like that? Who are you writing this report for? Because you have an engineering background you have technical knowledge. How do you put that in a way that laypersons understand? What are you getting where you are driving?

Dr. Jeffrey Buckholz: In my field, it is not so difficult because I am usually not conveying the details of a highway capacity analysis, peak hour factors, and turn adjustments. Things that would confuse a normal person, but that is typically not involved in expert witness work. Typically, it is a traffic accident and people understand the issues involved, so I do not have to translate highly technical stuff into simple things. Sometimes when we go before an arbitration board, which I have done it is some contractor dispute that can get more technical. It cannot be easy to convey to an arbitration board the technical aspects. I try to simplify as much as possible. Sometimes you can and sometimes you cannot.

Noah Bolmer: You handle a fair number of projects simultaneously. How do you manage your time? Do you use software or have an assistant? What is your method to keep everything together and make sure that you are getting everything done by the various deadlines involved?

Dr. Jeffrey Buckholz: I do it all myself. The good thing about expert witness works is there is hardly ever a deadline. Deadlines and expert witness work are compared to the deadlines I must meet in preparing traffic studies and designing traffic signals. Doing signal timing has real deadlines. For expert witnesses, if you can get it to me in three weeks, that is great. If you can get to me in a month, that is plenty of time. The way I organize, I do it all myself. I have an assistant, and if I need CAD drawings, he does the drawings, I word process everything I do and have a spreadsheet of all my jobs, both expert witness and non-expert witness. I refer to the spreadsheet constantly. It has the job number, job name, the client’s name, when it started and ended, and the amount of money. I can refer to it quickly and see the job in a summary. I can see all my jobs in the summary. If there is a deadline, I can put that on the spreadsheet as well. So, I have this Excel spreadsheet I use often.

Noah Bolmer: While most cases do not make it to trial, you have had a fair number of depositions and some trial experience as well. How do you prepare for getting grilled and what part does your attorney play in that kind of preparation? Do you do any mock cross-examinations, for instance?

Dr. Jeffrey Buckholz: I have never done that. I have never done any mock anything. I just refreshed my memory with the file and answered the questions. Those depositions are not criminal depositions where you say as little as possible. In these depositions, they typically want me to explain our position. The position that I have taken. When a question is asked, I take the opportunity to answer it and expand some. The other side understands our position, which is my position. I expand more than I would on another sort of deposition, where you want to play it close to the vest. I do not do any mock trial stuff, and I have not had anybody ask me. I would participate in that if they wanted me to, but nobody has asked me that.

Noah Bolmer: There are a couple types of engagements and a couple types of reports. Many times, you are writing an initial report, but sometimes you are also doing a rebuttal report. Does your strategy change at all when you are doing rebuttal work?

Dr. Jeffrey Buckholz: It is much easier because all I must do is read the original expert’s position and his references. There may be some additional references he did not look at. The problem is framed out by that person. In rebuttal work, you are responding to that. He might have missed something great on his side. I am not going to jump in and say, “Buddy, you forgot to do this for your client.” I am silent on that because I am just rebutting his work. It is easier because you are just responding, it is more contained than if you develop it all on your own, so it typically takes less time, typically, to do rebuttal work. I tell clients, “Do not have me do anything until-” you know if they are on the defense, and I do work for both the plaintiff and the defense. [I’ll say], “Let’s not do anything until their expert produces an opinion because the ball is in their court. They must prove their case and when it saves you some money, I will respond to their expert, and it will save you some money instead of not having to reinvent the wheel then.”

Noah Bolmer: Is that part of the vetting process when you are deciding whether to take a case on whether it is an initial report or a rebuttal report? Consulting expert or testifying expert? Are there things that are packages that you prefer to do, either because they just make you more money or they are more interesting to you or anything like that?

Dr. Jeffrey Buckholz: I never think about money when I do a case because I am so interested in what I learned from these things. I mean, money is part of it, but I learned many things being an expert witness. It helps me in my practice, but I do not turn anybody down unless it is not in my area of expertise. I will say, “I do not do that. It needs an accident reconstruction guy or a structural engineer. I am a traffic engineer.” I stick to what I do best. If it is in that area, I will look at the case for them now. They might not like what I have to say, and I have had many attorneys say, “Jeff, you have enlightened us on this, but we are going to let you go because we are going in a different direction.” I understand they are going to try to find somebody who will back them up. At least now they know what the other side is going to be saying. It is important to not only let the attorney know what is in their favor, but what is not in their favor. So, should they settle? How far should they push this? Eventually, if the other side gets a good expert witness, they are going to bring those.

Noah Bolmer: I want to pivot back to ethics because you sent me an interesting article that you wrote called 10 Things Ethical Expert Witnesses Say. And if it is alright with you, I would like to walk through some of those with you and get your take on these. One of the things you said is that the initial consultation is free. Tell me what happened, and I will tell you if I think I can help. Tell me about that.

Dr. Jeffrey Buckholz: Yeah, but I do not charge people for the initial talk. I think they have a right to see whether I can help them or not and that discussion can go up to an hour. We want to get to the bottom of whether I can be of help.

Noah Bolmer: Another thing I found interesting was your one to 10 scale regarding whether a case is worthwhile taking, or if it is going to settle. Tell me a little bit about your one to 10 scale.

Dr. Jeffrey Buckholz: I do that, especially when I understand the issues, I will tell the attorney, “I think you got a slam dunk here. On a scale of 1 to 10, you have a 10!” What happened here? At other times, I will tell you, “I think you got a rating of one and are grasping at straws to try to find something incorrect.” Most times it is a four, six, or seven. I try to give them an idea of how strong their case is. Now, that could change as I become more familiar with it. They know whether to use me or pursue the case. I think people should do that in life. I think you have got to give a percentage of confidence for every statement you make. Like, I believe in God 95% sure, 80% sure, or 75% sure. I am a Detroit Tiger fan. Well, 50% of the time. It would help to know how committed people are to their statements. If somebody is 100% committed all the time to everything, that person is a nut. That person is a “Jim Jones” type because nobody is 100% sure 100% of the time. The rating helps them get an idea. I think in life we ought to do that. We need to give ratings of how confident we are in our statements.

Noah Bolmer: Skipping ahead in your list, one of the other things I wanted to ask you about is this, “I don’t think defendant X did anything wrong. You may want to consider dropping them from the case.” That is the first time I have heard an expert witness suggest that. Tell me more about that.

Dr. Jeffrey Buckholz: A poor soil engineer taking soil borings or somebody putting up a sign gets sued when they had nothing to do with a traffic accident. If I see that early on, I will say, “Why do you have these guys in the case? Well, they probably should not be in there. Here is why.” I try to tell them that quickly if I can figure it out.

Noah Bolmer: Moving from the ethical implications of all of this, let’s talk about what makes a positive engagement between an expert and an attorney. What are the memorable engagements or things that make a successful and efficient team?

Dr. Jeffrey Buckholz: In my case, I deal best with attorneys who want to know what happened. I usually do better with people who are kind of laid back and trying to figure out what happened. They realize that the issues can be complex, and they respect my expertise. I tend to do better with those people than with somebody who is under pressure.

Noah Bolmer: Before we wrap up, do you have any last advice for newer expert witnesses or attorneys working with them?

Dr. Jeffrey Buckholz: I mean, the legal system in this country is great. What sets us apart is an impartial legal system and I hope that continues to be the case. We have an impartial legal system that is blind to politics and opinion but that goes on the facts and that is a privilege to serve in that.

Noah Bolmer: That is sage advice, Dr. Buckholz. Thank you for joining me today.

Dr. Jeffrey Buckholz: Thank you.

Dr. Jeffrey Buckholz, President, Buckholz Traffic

Our guest today, Dr. Jeffrey Buckholz, owns Buckholz Traffic, a full-service traffic engineering consultation firm. He is a nationally recognized expert in traffic signal operation, timing, design, and construction. Dr. Buckholz has participated in over 200 cases with engagements including both depositions and trial work and holds a Ph.D. in civil engineering from the University of Florida.