Off Topic: In Defense of Judge Kozinski’s “Hortatory”

The Ninth Circuit Court of Appeals’ recent decision, Frost v. Gilbert, is certainly an entertaining read. It features a battle of sorts between Judge Alex Kozinski and a bunch of dissenters who say that a section of the opinion Kozinski authored is “merely hortatory.”

Hell, I didn’t even know what “hortatory” meant, so I had to look it up. It certainly looks like a delicious word from a bunch of dissenters.

According to, “hortatory” means:

1. urging to some course of conduct or action; exhorting; encouraging:
a hortatory speech.

Well that’s boring. I thought it meant “bullshit” or something like that. But instead it means “urging some course of conduct or action.”

Sounds like what lawyers do every day in court. And I didn’t even know the meaning of the word! So now after work when my wife asks what I did that day, I will advise her that my work in court was “merely hortatory.”

Politicians engage in hortatory. The Donald, Ted and Hillary engage in hortatory every day when they ask voters to make sure and vote. And “Feeling the Bern” sounds pretty hortatory if you ask me.

The courts engage in hortatory. They complain of lack of funding and ask the legislature to give them more money. That’s merely hortatory. The courts encourage errant lawyers to turn over discovery. That’s merely hortatory. (Well maybe not merely if the hortatory is documented in an order.) The courts tell lawyers to “get to the point.” That’s hortatory. Lawyers ask the jury to convict or acquit – that’s just hortatory.

It’s all hortatory!

So what about Kozinski’s opinion encouraged the dissenting judges to open the pages of a yellowed thesaurus or to Google something or to ask a bookish clerk to find such a foreign word as hortatory?

Well Judge Kozinski was irritated by what appeared to be a hide-and-seek game being played by prosecutors who failed to turn over Brady material to the defense during a trial and even after the trial.

After reading the opinion, I found myself agreeing with Judge Kozinski. It sure looks to me like prosecutors were hiding from the defense plea agreements the prosecutors secured with a testifying witness. And Judge Kozinski did what good judges should do – he called out the prosecutors for their actions. And for this he was accused by the haughty hortatating (?) dissenters of hortatory!

I’m just glad to see that some judges are disturbed when prosecutors play games and I encourage other judges to follow Judge Kozinski’s example. But that’s just me being hortatory.

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