Legal Advocacy Flashcards
(98 cards)
taken out of context
【断章取义 - 法院紧接着在下一句就澄清了xxx】
he Complaint opens with a self-contradiction. As it alleges: “[t]his case is about the defendants’ refusal to refund $500,000 that was never theirs.” Compl. at 1. Yet in the very next breath, it alleges that
The second circuit clarifies in the very next breath that xxx
clearly/obviously
【显而易见】
The problem with this, to state the obvious, is that …
manifestly wrong
【为了省事】
Respondent refers to these entities jointly as “Claimant” for ease of reference
First of all/for starters
【首先】
As a threshold matter
As a preliminary matter
As a predicate matter,
On the contrary/In contrast
【恰恰相反】
【更不要说】
e.g. Given Techfaith’s repeated disclosures that Yingbai was subcontracted to manufacture phones that the Tecface subsidiary designed, there is nothing nefarious about Mr. Wang leaving his directorship in that subsidiary then injecting capital into Yingbai a year later—much the opposite. These facts mean that Plaintiffs’ new allegations about Mr. Wang add nothing to their case.
e.g. None of these statements so much as suggested, much less announced as a matter of public policy, that after-school services would be “shift[ed]” “away from private businesses . . . in favor of primary and secondary schools by 2022” as Plaintiffs claim. (Let alone
Important/Material
【同样有决定性作用的是】
Necessary
必要的、需要的
Equally dispositive is the fact that
Party’s labelling is not controlling
The necessary authority - The requisite authority
If
【假设】
【即便认为你没撒谎】
assuming, arguendo, (for the sake of argument) e.g. First, assuming, arguendo, that the after-school tutoring business was a material part of FHS’s business, none of the pre-IPO news and reports concerning the after-school tutoring sector revealed anything about an intent to eliminate the industry
give them the benefit of doubt
wrong
I. 【事实错误 】
1. 忽略事实
（1） 忽略了这些事实（判决没有提xxx事实）
（2）更深层次的错误是，法院没有触及xxx事实
2. 事实上没根据
3. 事实上有根据但扭曲事实
II.【实体法律错误】
1. 案件不适用
2. 过度解读
3. 胡扯八道
4. 引得案子正好印证了我方观点
III. 【程序法错误】
1. 太晚了
2. 前后矛盾
3. 没有展开、Answer没有提
IV.【推理错误】
1. 错误地得出结论
2. 犯了个大错
3. 逻辑牵强 (四种表达)
4. 逻辑错误
5. 东一榔头西一棒子的论点，全部脱靶
6. 跑题
7. 数量上错误
（1）错误地聚焦在了一个点上
（2）有两点错误
8. 程度上错误
（1）过于宽泛地解释
9. 自相矛盾
10. 前提就错了、起点就错了
11. xxx可以使得论点瓦解
12. 理由单薄
13. 循环论证
14. 逻辑上有大漏洞
V.【事实、实体法、程序法、推理都对，但是败诉】
right on point
【典型案例】
This case presents quintessential circumstances for class litigation and Plaintiff’s motion should be granted
Insurance companies are the quintessential example of such a party
gist/crux of sth
【核心】
the gravamen of the amended complaint is 控诉要旨
The upshot of the argument is 要点、概要
违法的illegal
【违法的】
【违法所得】
【违法转移财产】
kosher/nefarious/problematic/not completely kosher, above board
e.g. Tecface subsidiary designed, there is nothing nefarious about Mr. Wang leaving his directorship in that subsidiary then injecting capital into Yingbai a year later
One who breaches her fiduciary duty cannot escape liability simply by claiming that theill-gotten gains did not go directly to her, but rather to a company she owned and controlled.
paid themselves and funneled the investment proceeds to entities they owned
sophisticated
【又不是小孩子了】
【装傻】
HNA is no baby in the woods. It is a highly sophisticated business conglomerate with an army of lawyers
play dumb
【立场过于极端、在违法的边缘试探】
论点不怎么样
This argument is flying a bit too close to the sun.
I don’t think this project/argument will fly
I don’t think this argument has any legs
response/rebuttal
【反驳】
Getty’s rejoinder (反驳) is that “[i]t is settled that when the value of securities is artificially inflated by fraud and improprieties or other relevant facts of which the marketplace did not have reasonable knowledge, the public trading price of the shares is not the measure of fair market value.”
【充斥着】
(1) the Complaint is loaded with statements that are classic allegations of fraud
(2) Securities Act claims sounded in fraud “[n]otwithstanding the [p]laintiffs’ fraud disclaimer” because claims were** “peppered” with** words like “inaccurate and misleading”
(3) the offering circular (i.e., prospectus) for the NS4 notes, **are replete with ** detailed disclosures of the considerable risks involved
(4) .The arbitration clause itself is **so permeated with ** unconscionable provisions as to make severance impossible.
(5) a chock-full of typos and grammatical errors 满篇语法错误和拼写错误
(6) Plaintiffs oppose the motion arguing that “[t]he arbitration agreement underlying Defendants’ Motion is so plagued with substantively unconscionable provisions that arbitration cannot lawfully be compelled.”
东拼西凑、捕风捉影、东一榔头西一棒子、充数的
[贬义]
Plaintiff cobbled together comments made by politicians 胡乱拼凑
But that sweeping assertion is not supported by the hodgepodge of generic public comments that Plaintiffs plead, as discussed above. Once again, Plaintiffs do not actually
allege that, prior to the Company’s IPO, any PRC government official proposed any specific new
regulations or change in policies applicable to online after-school K-12 tutoring services, much
less an outright ban on the industry.
all of Defendants’ scattershot arguments missed the markt
[中性]Complaint contains numerous statements marshaled by plaintiffs to purportedly show sufficient
minimum contacts with the United States./marshalled facts and arguments 罗列整理事实和论据
Section 11 requires much more than the grab bag of suspicion and speculation contained in Plaintiffs’ pleading.
Further, as the parties have indeed agreed to arbitrate any dispute under the Agreement, any argument as to the meaning of the Clause is a dispute under the Agreement which is in any event left to the arbitrator. The objection is no more than a makeweight.充数的
挑挑拣拣、混淆视听
- Distort innocent facts into fraud
- Obfuscate
- Equivocate
- cherry-picking
In short, Plaintiffs are again attempting to distort innocent facts into fraud by leaving out parts of documents and companion materials that directly contradict their allegations.
Throughout their submissions, Plaintiffs consistently obfuscate “Mfox” with these two Chinese terms, even though the underlying Chinese words are visibly different. - Plaintiffs hope that the Court will throw up its hands in confusion and let them make obfuscating allegations with impunity. But, in trying to rehabilitate their brand-based allegations with “certified” translations, Plaintiffs only revealed how they stacked the deck. 作弊(暗中布局，使情势有利或不利)
没有回应
Serenium ignores the body of case law cited in Defendants’ Motion that universally requires some “contacts with the forum State itself,” not just contacts with a plaintiff that resides here.
claim
LaSalle avers that the defendants knew or “should have known” that these loans were not made in accordance with customary industry standards, and, as such
Allege/purport a
the trustee expends three pages arguing that
Therefore, argues [xx], the appropriate choice would be
Filed claims for breach of contract → lodging claims for breach of contract
Allegedly
Purportedly
Ostensibly they ostensibly took down this because it was not in use anymore.
【胆大包天】
睁着眼说瞎话
明明没有证据，还敢xxx
More glaringly, Defendants are simply wrong in their interpretation of Section 3(iv). Section 3(iv) is a commitment by the Partnership to maintain adequate funds to refund investors.
Unfazed by the absence of any evidence/language, Unfazed by the absence of any statutory language in any of the relevant sections distinguishing between Delaware corporations and foreign corporations, Deng
(don’t feel worried when it should have)
【Case】
1. 这个case挺好的
2. 这个case说得好
3. 我们没找到相关的案例
4. 那个案子判错了，本院不该follow
5. 完美契合
6. 这个case就没关系啊
7. 否认/推翻+一直不变/多年不变的判例
8. 这个case完全就代表了这个立场
- Instructive
to be dispositive of the issue presented here by force of its logic, albeit not as a matter of stare decisis. -
As cogently explained in
But the Castro court separately analyzed Section 8-317 (Section 8-112’s immediate predecessor), which contained the same exception for
Section 169. As it held, in requiring physical seizure: - A diligent search has not uncovered any cases in Washington that address or allow reverse corporate piercing.
- which, with all due to respect to the Court in that action, was incorrectly decided and contrary to the ample case law governing a secured creditor’s rights under the loan documents, applicable law and the Uniform Commercial Code (“U.C.C.”).
- (1) The actual chronology of Silver Plaza’s construction therefore dovetails perfectly with Exhibit J, showing numerous transfers into it from the Recipients right when it needed money.
Moreover, defendant’s jurisdictional objection did not fit hand in glove with his substantive defense, thus undermining his “double relevance” argument.
(2) Professor. Reitz echoed Plaintiff’s position to the letter. - unavailing/inapposite/misses the mark/off the mark/misplaced/self-defeating
Similarly unavailing(futile) is Citigroup’s reliance on Nordbank.
Deng’s reliance on Crystallex Int’l Corp. v. Bolivarian Republic of Venez., 2021 WL 129803 (D. Del. Jan. 14, 2021), continues to be misplaced.
7. depart from/negate/overturn/upend the Long-held/long-settled/long-standing/the situs rule that was steadfastly held by Delaware courts for decades/divorced from the text/contradicts/betrays/
8. Of course, the reality in Crystallex, like here, was that “the shares are not in Delaware (and cannot even be located).” Id. at *37-38. So, Crystallex necessarily stands for the proposition that actual seizure is not required. Just as importantly, had the statutory framework not provided for “situs” of a Delaware corporation’s shares in Delaware, but rather the reading Defendant advocates, the Crystallex court could not have applied judicial estoppel, as “[j]udicial estoppel cannot … override a statutory requirement.”
【equity】
咎由自取、自作自受
乍一听很厉害，实际上根本没有任何法律意义
Galaton v. Johnson, No. 5:11-CV-397-D, at *4 (E.D.N.C. Aug. 17, 2011)
(“Equity need not and will not provide a balm for Galaton’s self-inflicted wound.”)
the Trustee makes the impressive sounding, but ultimately legally-irrelevant argument
【statutory Interpretation】
最后一道防线
不一致
牵强附会
magic words
purposive argument v. Textual argument
这个想法是允许移送管辖，这样联邦法院可以作为最后手段并命令对一个集体诉讼进行解散，从而将其“纳入” § 77p(b) 的限制范围。 The idea was to allow removal so that a federal court could act as a backstop and order a class action’s dismissal—thereby “subject[ing]” it to § 77p(b)’s bar.
牵强附会 Faced with such recalcitrant statutory language, they stretched the language beyond reason桀骜不驯的
result is out of line with SLUSA’s overall scope.
Even assuming clear text can ever give way to purpose, Cyan would need some monster arguments on this score to create doubts about SLUSA’s meaning.’
Heedful of that history of machinations, Congress may have determined to eliminate any risk—even if unlikely or at the time unknown—that a pre-existing grant of power to state courts could be used to obstruct SLUSA’s new limitation on what they could decide.
So even without Cyan’s contrived reading of the except clause, SLUSA largely accomplished the purpose articulated in its Conference Report: moving securities class actions to federal court.
No talismanic language is necessary to create a condition precedent in a contract. (Magic words)
【机械重复构成要件】
Merely parroting the elements of the statute does not meet the minimum pleading requirements for a claim under Section 1304(a)
