Jane specialises in complex banking, contract, tort and shareholder disputes. Chambers and Partners ranks her in its global asset tracing litigation chapter, describing her as “bright, effective and very high-profile in the market”. Jane is listed in the top tiers of The Legal 500 2019 (which calls her “extraordinarily strategic” and recommends her for “her expertise”) and Chambers 2019 (“‘The best civil fraud litigator I know” is how one source describes Jane and “tactically shrewd with an incredible intellect – she is a real class act”).
Who inspired you to pursue a legal career?
My grandmother, Midge, who was hugely energetic, rarely fazed by life’s challenges (and she lived in London through two World Wars), fiercely independent and flexible in her thinking (no doubt, helped by all the huge developments she had seen in her lifetime). Midge was a super role model as to how to live well. She lived until she was over 102 attributing her longevity to laughing a lot. I attribute it in part to that but also to her “can do” spirit and her curiosity about life.
As asset recovery becomes more cross-border and global in nature, what are the main qualities lawyers in this field need to possess?
I would say the traits needed to be a good and effective fraud litigator and asset recovery lawyer include, of course, being technically accomplished but also agile and creative in your thinking, and expert in using innovative technology, ie, always skilling up. Dealing with high pressure, communicating concisely, typing fast and coping with not much sleep also come in handy.
How is third-party funding influencing the asset recovery market?
Third-party funding is just one way in which litigation is becoming an investable asset. Funders are becoming more active in this space, which provides claimants with the financing required to see a claim through to the end result. Funders are laser-focused on the creditworthiness and assets of a defendant when considering whether to fund a claim. Freezing and disclosure orders, pre and post-judgment, plainly give visibility in this regard. Investors are also interested in the ability to purchase arbitration awards and judgments (even though there may be some risk around challenge or appeal). In this scenario, the third-party funder is paying an upfront price factoring in risk of recovery and delay.
To what extent is technology revolutionising the way in which investigations are conducted and what challenges does this pose for lawyers in the field?
As well as funding of litigation, LegalTech is also now attracting funding from a variety of sources. The Times reported in October 2019 that investment in UK legal tech start-up businesses has increased threefold to £61 million in the last year. Thomson Reuters also recently reported that the huge explosion of technology into the legal sector in the UK has arisen because of the number of law firms which are incubating programmes. “Justice UK” is a top “brand”, but it is sometimes regarded as too expensive. It was recently reported, for example, that GCs and claimants were reducing legal spend and abandoning claims due to costs. The availability of third-party funding, and the usage and uptake of machine learning/technology-assisted review (TAR), respond to such business needs. Brown Rudnick’s litigators are “sold” on TAR’s use and we have our own TAR capability in-house. Given the explosion in available data that may need to be reviewed for any number of purposes (for example, fraud/regulatory investigations, search orders, litigation whether here or elsewhere) we deploy our TAR system to deal cost-effectively with both relatively “low” amounts of data as well as very large data sets. This offers clients significant time and cost savings versus a traditional “human only” review model. While usage of TAR systems is spreading and becoming more commonplace, this can only be aided by a growing number of courts in certain jurisdictions that have expressly approved the use of such technology. At the start of this year, the High Courts in England and Wales “called litigators to arms” pressing on them the need in complex disputes to embrace change and machine learning technology/TAR. I welcome the reboot. Change keeps the profession an interesting and challenging one to be in.
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?
To dismantle frontiers and help promote equity and inclusion at all levels within the profession. Since December 2016, Brown Rudnick has been hosting in its London office a Women in Business Series where we have asked inspirational women speakers from various areas of business to speak about their careers. The events are designed to promote diversity and in doing so, break down barriers and open the legal profession to more women. We have had the pleasure of being joined by some excellent speakers since the series began, including: Amber Rudd, while she was home secretary; Cressida Dick, the Metropolitan Police commissioner; Cath Kidston, MBE, an English fashion designer; and The Rt Hon Dame Elizabeth Gloster. We already have more inspirational speakers lined up for the rest of 2019 and 2020. The firm also runs a social mobility diversity fellowship aimed at first-year law students who are the first members of their families to graduate from college. I wholly support all the firm does to ensure diversity. It makes it a rich place to work.
Jane Colston is a litigator specialising in commercial banking, contract, fraud, tort and shareholder disputes. Jane is ranked in the top legal directories, which describe her as “excellent”, “an outstanding lawyer”, “extraordinarily strategic”, and “fierce, super-efficient, indefatigable and a winner”. Jane lectures at conferences for the IBA and C5, and is a member of the IBA litigation committee and the Commercial Fraud Lawyers Association. She is a trustee of law charity the International Law Book Facility.
How have you developed your litigation practice since you first began your career?
I trained and qualified in Hogan Lovells’ litigation department, and then joined Baker & McKenzie. In 2004 I co-founded one of the first City litigation boutiques before returning to an international platform.
At Brown Rudnick we deploy fully integrated civil law and common law global litigation teams, who have experience in dealing with cases in more than 65 countries, and we therefore have a truly international team. We offer something rare: cross-border civil fraud matched with criminal and regulatory expertise, which is essential when dealing with complex fraud litigation. All three disciplines are firmly entwined here.
What impact has the increasing use of third-party funding had on litigation in recent years?
Third-party funding has “forced” law firms to look at cases not just from a merits perspective of how it will be received by a judge, but more commercially, ie, how much will be recovered and when. Some now look at litigation as an asset that can be traded, monetised, portfolioed, leveraged or insured. This is causing law firms and clients to align better, particularly in terms of innovative pricing and risk sharing, which is increasing.
To this end, law firms have increasingly been using damages-based agreements or relying on insurance or capital solutions providers, or both, to smooth the litigation process and financing.
Also, traditional funders are being challenged by disruptive financiers who offer competitive pricing/merchant bank advisory, analysis and structuring strategies, and some ensure transparency since they publish all pricing. Interestingly, these new litigation financiers and risk mitigators are taking a genuine interest in partnering with a law firm on the basis of trust, as well as economics.
The judiciary has, for some time now, taken an interest in how cases are funded, with the aim of providing access to justice.
In your opinion, what impact will the witness evidence working group’s report have on witness statements?
Current practice relating to witness evidence in the business and property courts arguably does not achieve best evidence. The recommendations of the Witness Evidence Working Group (WG) are likely to go some way to redressing this.
I share the view of the WG that progress is likely to be better achieved through a light-touch approach, rather than any radical reform, such as doing away with witness statements altogether.
The courts’ promotion of the use of technology is welcomed, as the technology will curate and analyse data cost-efficiently and effectively, thereby shortening the time-consuming process of evidence gathering in witness statement preparation.
As an active member of multiple inclusivity initiatives, how do you think law firms can improve diversity?
I have been appointed Brown Rudnick’s equity, inclusion and diversity (EID) partner along with my New York partner, Chelsea Mullarney. We are taking over this important role from our Boston partner Sunni Beville, as she has now been promoted to managing director of dispute resolution and restructuring.
As part of Brown Rudnick’s commitment to breaking down barriers, we will participate directly in conversations regarding recruitment, integration, professional development, elevation and compensation.
Since 2016, Brown Rudnick, London has been hosting a Woman in Business/EID series, where we have asked inspirational business people to speak about their careers. The events are designed to promote diversity and, in doing so, open the legal profession to more. We had the pleasure of being joined by excellent speakers including Amber Rudd (while she was home secretary), Cressida Dick (Metropolitan Police commissioner) and Cath Kidston MBE (English fashion designer). The Honorable Mrs Justice Carr DBE will speak to us on 24 March 2020.
Brown Rudnick’s other EID initiatives include a social mobility fellowship (open to law students who are the first in their families to graduate from college); an “on ramp” fellowship (which supports experienced lawyers who are committed to returning to work after a career break); and adoption benefits.
I wholly support all the firm does to ensure diversity. It makes it a rich place to work.
What advice would you give to junior practitioners hoping to one day be in your position?
Be a strong team player. There is no “I” in team and when work gets tough, as it will in any high-stakes litigation, being constructive and supportive is key.
Don’t be scared to let your personality shine – diversity of thought means bringing different skills and perspectives to the table. There was a terrific article recently in The Times about how cognitive diversity helped the Bletchley Park team crack the Enigma Code.
Look for opportunities to get the experience that will make you a better lawyer and allow you to build meaningful business relationships. Balance emotional, physical and mental needs. Make time to move! Brown Rudnick sponsors weekly yoga for all, and I do my utmost to take that well-being time.
Jane Colston enjoys a stellar international reputation for her world-class work on high-value banking and finance, and corporate disputes.
Jane Colston specialises in complex banking, contract, tort and shareholder disputes.
The Legal 500 (2019) names her as a “leading individual” in civil fraud and banking litigation, describing her as “fierce, super-efficient, indefatigable and a winner” and "to-the-point, calm, and aggressive when needed”, with “very good knowledge of the case she is in charge of – she makes clients feel safe". She is also named in the commercial litigation rankings as "everybody’s favourite litigator owing to her genuine care and loyalty".
Chambers UK (2019) ranks Jane in the top tier for civil fraud, naming her “one of the country's leading fraud lawyers”, and describing her as “tactically shrewd with an incredible intellect” and “a real class act." Jane is also commended in Chambers Global as "bright, effective and very high-profile in the market”, and “especially respected for her ability to couple civil fraud cases with the recovery of misappropriated assets".
Jane has also received listing in WWL’s Thought Leaders Global Elite guide (2019), which comprises the top 2 per cent of all eminent practitioners listed across all of WWL’s guides.
Jane is part of the litigation team in London that in 2018 and 2019 won The Legal 500 Award for Firm (specialism) of the year in the crime, fraud and licensing category, given in recognition of Brown Rudnick’s skills in litigation fraud.
Jane frequently lectures at international conferences, including those held by the IBA and C5. She is co-editor of the IBA litigation newsletter; a committee member of the Commercial Fraud Lawyers Association; and a trustee of the International Law Book Facility, a law charity.