Closing Opinion Preparation Checklist: A Practical Checklist

Document type: Checklist Practice area: Corporate — Commercial Transactions Jurisdiction: United States (federal and state) Last reviewed: 5 September 2026

How to use this checklist

Sections 1 and 2 come first and determine everything else. Sections 3 through 6 are the diligence. Sections 7 through 9 are drafting, review, and negotiation. Sections 10 and 11 are delivery and the file.

Items marked [DEFECT RISK] are the ones that most often produce an opinion that cannot be supported.

1. Scope the request

Opinion request obtained in writing and read as a list of workstreams.
Addressees identified; anyone else expected to see the letter identified. [DEFECT RISK]
Each numbered opinion assessed: can we support it, and with what diligence?
Refusals identified on day one and communicated: priority; general compliance with law; solvency; matters outside the firm's competence. [DEFECT RISK]
Whether the firm holds a current file for the client, or the diligence starts from nothing.
Whether the opinion adds real value in this transaction, and the client so advised.
Proposed form circulated with the first draft of the transaction documents, not at closing. [DEFECT RISK]
Opinion built into the closing timeline as a real item with a real deadline.

2. Jurisdictional map

Every opining and covered entity listed with its jurisdiction of organization and principal place of business.
Governing law of each transaction document identified.
Every location of material collateral identified, including fixtures and titled goods.
Coverage assigned per jurisdiction: firm-qualified / local counsel / "as if" construct / expressly excluded.
Local counsel engaged on day one, not in the closing week. [DEFECT RISK]
Reliance structure decided: express reliance on local counsel opinions, or direct delivery to the addressee.
Foreign counsel scoped for capacity, authorization, enforceability of the choice of law and forum provisions, recognition of judgments or awards, exchange controls, and withholding.
Scope of each local and foreign opinion confirmed to cover what your opinion assumes. [DEFECT RISK]

3. Entity status, power, and authorization

Certified charter documents obtained for each entity.
Good standing (or equivalent) certificates obtained, dated close to closing, with a bring-down confirmation on the closing date.
Bylaws or operating agreement reviewed for: purposes; limits on borrowing, guaranteeing, or granting liens; and required member or shareholder consents.
Board, manager, or member resolutions obtained, authorizing this transaction in the correct form.
Quorum, vote, and signatures on the resolutions checked.
Directors or managers confirmed duly elected, walking back through prior consents where necessary. [DEFECT RISK]
Incumbency certificate with specimen signatures obtained.
Signatory confirmed to hold the office and the office confirmed to have authority under the resolutions.

4. Enforceability analysis

Every transaction document read completely. [DEFECT RISK]
Each provision of doubtful enforceability identified under the governing law.
A qualification drafted for each, or a documented judgment that none is required.
Recurring items considered: self-help and non-judicial remedies; waivers of statutory or constitutional rights; jury trial waiver; indemnification for one's own negligence and for securities law liabilities; choice of law; forum selection and consent to jurisdiction; liquidated damages, default interest, late charges, and prepayment premiums as penalties; severability; cumulative remedies; no-oral-modification; attorneys' fees; irrevocable powers of attorney.
Bankruptcy exception included — bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, and other laws affecting creditors' rights generally. Never omit. [DEFECT RISK]
Equitable principles exception included, covering materiality, reasonableness, good faith, fair dealing, and the court's discretion whether the proceeding is at law or in equity. Never omit. [DEFECT RISK]
Generic qualification used only where the underlying practical-realization judgment has actually been made.

5. No conflicts and no consents

Charter prong: documents compared against the charter and organizational documents.
Law prong: statutes and regulations enumerated — no general compliance opinion. [DEFECT RISK]
Court order prong limited to orders identified to counsel.
Agreements prong limited to a schedule of specified agreements — never "any agreement to which the Company is a party." [DEFECT RISK]
Every agreement on the schedule actually read. [DEFECT RISK]
Each reviewed for: negative covenants on debt, liens, guarantees, asset sales, and restricted payments; change of control provisions; anti-assignment clauses reaching internal reorganizations; and financial covenants breached on a pro forma basis.
Findings escalated to the deal team and resolved (consents obtained, structure adjusted, or disclosure made).
Governmental consents under the enumerated statutes identified and confirmed obtained or not required.

6. Security interest opinion

Security agreement grants a security interest; collateral described by category, not merely as "all assets." [DEFECT RISK]
Commercial tort claims described specifically where included.
Value given and debtor's rights in the collateral — assumed, and the assumption stated.
Debtor's name taken from the certified public organic record and checked character by character. [DEFECT RISK]
Secured party name and address correct.
Collateral description in the financing statement sufficient.
Correct filing office identified by the debtor's location.
Financing statements filed; acknowledgment copies obtained.
Lien searches run before and after filing, confirming acceptance and correct indexing. [DEFECT RISK]
Non-filing perfection handled: deposit accounts (control — filing does not perfect); certificated securities and instruments (possession/delivery); securities accounts and investment property (control); letter-of-credit rights (control); titled goods (certificate of title or federal registry); registered IP (federal recordation in addition to the UCC filing); fixtures (fixture filing). [DEFECT RISK]
Priority expressly excluded from the opinion.
Continuation, future name or jurisdiction changes, and collateral existence and value expressly excluded.

7. Officer's certificate

Drafted by opinion counsel, not borrowed from a form.
Covers: accuracy of attached charter documents and resolutions; incumbency; the schedule of specified agreements; litigation; collateral facts (rights in collateral, exact legal name, jurisdiction of organization, chief executive office); securities offering facts; and consents.
Every fact certified is within the officer's knowledge — no legal conclusions requested.
Signed by an officer with actual knowledge, walked through the contents.
Internal knowledge sweep run: draft circulated to lawyers in the firm who have worked for the client, asking whether anything is inconsistent. [DEFECT RISK]
No reliance on any certificate known to be inaccurate. [DEFECT RISK]

8. Assumptions, qualifications, and reliance

Customary assumptions stated: genuineness of signatures; authenticity and conformity of documents; capacity of natural persons; power, authority, authorization, execution, delivery, and enforceability as to other parties; absence of mutual mistake or fraud.
Transaction-specific assumptions stated: collateral existence and debtor's rights; value given; purchaser status; use of proceeds.
No assumption of the conclusion and no assumption known to be false. [DEFECT RISK]
Reliance on local and foreign counsel stated, with firms identified.
"To our knowledge" defined — actual knowledge of lawyers who gave substantive attention, after inquiry, without independent investigation. [DEFECT RISK]
Addressees named; class of permitted relying parties defined.
Participants excluded unless there is a reason to include them.
Open-ended reliance language rejected ("any person to whom the Agent may deliver this opinion"). [DEFECT RISK]
No updating obligation stated expressly.
Non-reliance limitation stated, with customary exceptions for regulators, auditors, and legal process.
Excluded subject matters stated: tax; environmental; ERISA; intellectual property ownership or validity; antitrust; employment; specialized regulatory regimes.
Jurisdictions covered stated, and all others expressly excluded.

9. Internal review and negotiation

Firm's standard opinion form used as the base.
Every departure from the form identified, explained in writing, and approved. [DEFECT RISK]
Opinion committee or designated reviewer outside the deal team has reviewed it.
Diligence checklist completed for each opinion paragraph and retained.
Unusual opinions (true sale, non-consolidation, negative assurance, tax) routed to a specialist.
Negotiation positions prepared for the recurring requests: agreements prong; priority; general compliance; no-litigation; reliance parties; knowledge qualifiers; jurisdictional coverage.
The golden rule applied and, where useful, stated to the other side: would your firm give this opinion?
Disputes escalated to partners early, not on closing night.
Agreed form attached as an exhibit to the transaction agreement.

10. Delivery

Good standing certificates and lien searches refreshed as close to closing as practicable.
Bring-down officer's certificate: resolutions not revoked or amended; signatories still in office; facts unchanged.
Local and foreign counsel opinions received and read, confirmed to cover what your opinion assumes. [DEFECT RISK]
Any change of fact between drafting and delivery re-examined against the opinion. [DEFECT RISK]
Opinion dated the closing date; escrow delivery avoided or a clear release mechanic used.
Firm signature applied.
Delivered to the addressees only, not to the full distribution list. [DEFECT RISK]
Consent to be named in any registration statement given deliberately and narrowly, with the 15 U.S.C. § 77k exposure understood. [DEFECT RISK]

11. The backup file

Assembled contemporaneously, not reconstructed. [DEFECT RISK]
Final signed opinion.
Opinion request, every draft, and the negotiation correspondence.
Charter documents and good standing certificates.
Resolutions and incumbency certificates.
Officer's certificate with all schedules.
The specified agreement schedule and copies of every agreement reviewed.
Lien searches before and after filing; filed financing statements with acknowledgment copies.
Local and foreign counsel opinions and engagement correspondence.
Memoranda analyzing each opinion paragraph, each qualification, and each departure from the firm's form.
Internal review record, escalations, and the knowledge sweep responses.
Retained for at least the applicable limitations period.

12. If something goes wrong

Fact changed between signing and closing: opinion re-examined, corrected, or re-dated before release.
Error discovered after closing: escalated immediately to the firm's opinion partner or general counsel, not resolved by the deal team alone.
Options considered: corrected opinion; supplemental letter; disclosure to the addressee.
Certificate found inaccurate: assess whether the opinion relied on it and whether anyone in the firm knew — the knowledge sweep record matters here.
Reliance asserted beyond the addressee list: the non-reliance paragraph invoked.
Claim threatened: file preserved immediately and not annotated; insurer notified within the policy period; counsel engaged.