If you’re in Baltimore on Friday, you should make a point to drop in on Larry Ribstein and Bruce Kobayashi’s presentation at the University of Maryland’s 2006 Business Law Conference of their paper entitled What’s So Bad About Paying Plaintiffs?
In this related blog post, Larry highlights the issues addressed in the paper by juxaposing the treatment of a couple of plaintiff-types who are currently signing like canaries, Enron’s Andy Fastow and Howard Vogel, the main accuser of Milberg, Weiss:

We explore the basic policies at stake in the related issues of paying off plaintiffs and witnesses involved in the Milberg indictment. We ask, what’s the difference between Andy Fastow and Howard Vogel? [. . .]
Both cases involve paying somebody for the effort and other costs involved in bringing facts to a court to establish claims that society thinks are worth bringing. [. . .]

As for paying witnesses, note that the law specifically allows payments to expert witnesses, recognizing the need to reward effort. But lay witnesses expend effort as well as risking social stigma and punishment. To be sure, the law has means other than payment of compelling appearance by fact witnesses. But the law has to identify relevant fact witnesses before it can compel their appearance. And while paying lay witnesses can encourage bad conduct, such as lying, the same is true for expert witnesses and for witnesses such as Fastow. Again, why distinguish these situations?
This question of how to distinguish the “payment” to somebody like Fastow and payments like those to Vogel arose in U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999), which ultimately determined, en banc, that government lawyers weren’t a “whoever” prohibited from giving “anything of value” for testimony. Why not? The least persuasive argument is that we can trust the government. Oh yeah? Anybody who thinks that should check with Judge Kaplan. [. . .]
Many people have focused on the outrage of Milberg suing for kickbacks while paying its own kickbacks to plaintiffs. There is truth in that outrage, but it’s not the whole truth. While the government was prosecuting Milberg for making payments, it was making its own payoff in the form of the plea deal with Vogel. Of course the government’s conduct wasn’t illegal. But, again, why is one form of conduct legal while the other is not?
This is no mere technical pursuit of logical purity. Unless we can soundly distinguish between legal and illegal conduct, we risk undercutting the very conduct norms the criminal justice system is supposed to be creating.

Read the entire post and the related presentation. And then think about the prejudicial impact on defendants of the system that Ribstein and Kobayashi describe, particularly where the government also effectively precludes exculpatory testimony by threatening other witnesses with prosecution.