For generations, civil litigation has occasionally carried the cadence of an old Bible story: David, with his sling and stone, defying the might of Goliath. But attorney Marcus Chatterton, a tech-minded litigator with Balch & Bingham in Birmingham, Alabama, says that parable no longer fits the modern courtroom, where technology, litigation funding, and shifting legal strategies are rendering the underdog’s triumph a relic of the past.
“Massive asymmetry in resources or burdens – especially discovery burdens – is what defines a David versus Goliath case,” Chatterton says. “But the tools available today, including AI and outside funding, are changing how those battles are fought.”
Chatterton, who often represents the Goliath side in commercial litigation, sees the old dynamic shifting in ways that make such archetypal cases not only rare but potentially obsolete.
“In business-on-business civil lawsuits, the discovery burden is usually pretty balanced,” Chatterton explains. “But in cases like environmental contamination or personal injury class actions, the person claiming harm might only have a thousand pages of documents and a contingency lawyer, while the corporate defendant could end up spending several million dollars gathering, reviewing and producing their data. And that creates – for an outsider – unexpected asymmetry.”
And while that might sound like an advantage for plaintiffs, Chatterton says it often isn’t.
“We don’t want to spend $300,000 going through 5 million pages, but we can’t give them to you without reviewing them first,” he says. “Sometimes, the other side thinks we’re hiding something. It’s like a dog chasing a car.”
Ironically, plaintiffs who receive massive amounts of documents often believe they’ve struck gold – or exposed a cover-up. In a recent Chattanooga medical malpractice case, attorneys Alix Michel and David Ward spent months combing through thousands of pages of surgical records and conflicting testimony in what they described as “the most papered case in the history of the Hamilton County Courthouse.”
“We had no paralegals, no secretaries – just each other,” Michel said.
Their dedication ultimately led to a $3.3 million jury verdict for their client. But Chatterton argues that much of that labor could now be done with the help of artificial intelligence.
“If I have to review and send 5 million pages to you, there are circumstances where we can use AI tools to make that manageable,” he says. “We’re starting to use generative AI on the back end to create efficiencies.”
Still, adoption is uneven. “Lawyers representing large businesses are conservative by nature,” Chatterton adds. But the pressure to modernize is growing. He’s seen cases where firms print out emails, mark them up with Sharpies, and scan them back in for review – a practice he calls not just outdated but unethical when billed at hourly rates.
“I’ve seen lawyers on both sides who act like it’s still 1980,” he says. “You should know how to handle an electronic discovery system.”
In the same malpractice case, Michel and Ward faced a defense team that filled multiple suites at SpringHill Suites, filed 5,000 pages of pretrial motions, and rotated in new lawyers for each hearing. They had no such support team. Still, they prevailed, in part by methodically challenging the credibility of expert witnesses and calling out inconsistencies in the surgical maps at the center of the case.
Chatterton views this kind of precision as a crucial skill: “Good lawyering on the part of the little guy cures a lot,” he says. “They poke around. They refine their requests. They shape their theory. They don’t cast a wide net to catch everything possible.”
But he notes that not every attorney has the time, money, or stamina to litigate that way. That’s where litigation funding comes in.
“If you’re in a classic David versus Goliath, you’re working on contingency,” he says. “You’re putting your own skin in the game and investing money.”
Litigation funders help level the playing field by fronting costs for discovery, expert witnesses, and trial prep in exchange for a share of any judgment or settlement. In patent litigation – Chatterton’s specialty – this model is now common.
“You get a David going up against [a tech giant], and they get $3 million in litigation funding,” he says. “They use that to pay for discovery, testifying experts and other litigation expenses.”
But many plaintiffs still go it alone. In a separate Chattanooga case, attorney Doug Hamill and his paralegal, Krista Guinn, took on BlueCross BlueShield of Tennessee after it terminated a longtime employee for refusing a COVID-19 vaccine based on her religious beliefs. Hamill and Guinn, without the support of co-counsel or funding, reviewed thousands of pages of internal policy documents and fought to obtain emails outlining the company’s accommodation process.
“We had to argue over whether certain documents were protected by attorney-client privilege,” Hamill said. “We fought hard to obtain an email chain among senior HR personnel drafting their one-size-fits-all accommodation proposal.”
The jury awarded $687,000, including punitive damages. Chatterton says this kind of win, while remarkable, is increasingly rare.
“The only true David and Goliath I can imagine is where all the people with better resources pass on the case because they misperceive it,” he says. “I’m not discounting the possibility that could happen, but to me, that’s an extremely rare scenario.”
Even when plaintiffs win, the cost of doing so – in time, emotional strain and risk – is often enormous. Hamill’s client endured a grueling deposition and watched as her sister-in-law testified against her. Michel and Ward worked weekends and late nights for months. Chatterton says that while he believes in the ideals of justice, the actual practice of law demands realism.
“We all believe in notions of justice and fairness, and we all aspire to them,” he muses. “But the way the sausage is made tends to make you more of a pragmatist.”
That pragmatism includes embracing tools that reduce waste and risk. For modern Davids, Chatterton says, knowing how to leverage technology, target discovery, and secure funding might matter more than righteous indignation.
The biblical metaphor endures, but the slingshot has changed. In today’s courtroom, AI-assisted review and investor-backed litigation strategies are the new stones. Without them, even the most determined David might find himself outmatched.